Citation Nr: 21071376 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-04 162 DATE: November 30, 2021 ORDER Entitlement to an initial compensable disability rating for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension, to include as due to herbicide exposure, is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for right shoulder condition is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to April 27, 2017, 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 II hearing acuity for the right ear and Level II hearing acuity for the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1969 to February 1973, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In December 2013 the Veteran filed a timely notice of disagreement (NOD) and in December 2015 the RO issued a statement of the case (SOC). The Veteran perfected his substantive appeal in February 2016 and requested a hearing. In May 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) via live video conference. A transcript of the proceeding has been associated with the record. In a July 2019 decision, the Board remanded these issues for additional development and the matters are again before the Board for adjudication. The Veteran's appeal has been advanced on the docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2020). 1. Entitlement to an initial compensable disability rating for service-connected 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). 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). In this case, the Veteran seeks a compensable rating for his service-connected bilateral hearing loss. Specifically, the Veteran contends that his bilateral hearing loss is more severe than reflected by his currently assigned disability rating. The Veteran was afforded VA audiological examinations in March 2011, May 2012, January 2017 and December 2020. Affording the Veteran the benefit of doubt, the Board will apply the results of the VA examinations most favorable to Veteran, those of the January 2017 and December 2020 VA examinations, to the entire period on appeal. In January 2017, puretone thresholds, in decibels, were at worst, as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 60 60 60 LEFT 50 60 55 55 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 58 decibels for the right ear and 55 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 January 2017 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level II 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 non compensable disability rating for the Veteran's service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII; Diagnostic Code 6100. The Board notes that the puretone thresholds for the Veteran's right ear and left ear on the January 2017 VA examination do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a), that is, the puretone threshold each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. As such, a higher rating based on an exceptional pattern of hearing loss is not warranted. In December 2020, puretone thresholds, in decibels, were at worst, as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 50 40 60 LEFT 20 20 35 40 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 48 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 86 percent for the left ear. Applying the test results of the December 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 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. The Board notes that the puretone thresholds for the Veteran's right ear and left ear on the December 2020 VA examination do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a), that is, the puretone threshold each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. As such, a higher rating based on an exceptional pattern of hearing loss is not warranted. 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. In addition, private and VA treatment records do not indicate a disability more severe than reflected by the VA examination. The Board has carefully considered the Veteran's asserted difficulties and in no way discounts 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 and are adequate. See 38 C.F.R. § 4.85(a). Furthermore, the Veteran does not allege that any of the VA examinations are inadequate. 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, 3 Vet. App. at 345. 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. In reaching the above determinations, the Board has considered the Veteran's competent lay assertions. The Veteran is certainly competent to describe his observations and the Board finds that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that personal knowledge is "that which comes to the witness through the use of his senses-that which is heard, felt, seen, smelled, or tasted"). However, the Board finds that the objective medical findings by skilled professionals, which incorporate the Veteran's competent assertions, provide the most persuasive evidence regarding the limitations posed by the Veteran's bilateral hearing loss. 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). Accordingly, the Board finds that an initial 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); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include due to herbicide exposure, is remanded. The Veteran is seeking service connection for hypertension. Specifically, he contends that his hypertension is related to his service in Vietnam. As noted above, in July 2019, the Board remanded this case for further development. Specifically, the Board directed that the Veteran be afforded a VA examination to address whether the Veteran is currently diagnosed with hypertension and provide a VA opinion. Pursuant to the remand directives, in April 2021, the Veteran afforded a VA examination. He was found to have a diagnosis of hypertension with onset in 2011. See September 2021 VA Addendum Opinion. The examiner opined that the Veteran's hypertension was not related to service because there was no evidence of hypertension during service or chronicity of care following discharge. Here, the VA examiner fails to address a May 2012 VA treatment record that indicates a history of hypertension or Veteran statements that his hypertension was diagnosed in the 1990s. Furthermore, the examiner fails to address the Veteran's service in Vietnam. Although hypertension is not listed as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e), the National Academy of Sciences Institute of Medicine (NAS) has concluded that there is "limited or suggestive evidence of an association" between herbicide exposure and hypertension. See 77 Fed. Reg. 47924, 47926-927 (Aug. 10, 2012). As such, the Board finds that April 2021 VA opinion and September 2021 VA addendum opinion are inadequate for adjudicative purposes and VA opinion that adequately addresses the Veteran's medical record and lay assertions is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a left hip disability is remanded. 3. Entitlement to service connection for right shoulder condition is remanded. The Veteran is seeking service connection for a left hip disability and right shoulder disability. Specifically, he contends that he injured his back, shoulder, knee, and hip in a motor vehicle accident during service. The Veteran also contends that he has experienced chronic leg and shoulder pain since service. See December 2013 Buddy Statement; June 2011 Statement; April 2011 Report of General Information; March 2011 VA Treatment Record; February 2013 VA Treatment Record; May 2019 Board Hearing. Following a review of the record, the Board notes that the record supports the Veteran's contention that he was injured during a motor vehicle accident while stationed in Thailand. The Veteran's service treatment records also show additional injuries to his spine during service, to include being thrown into a tree. See November 1972 STR (removed from long leg cast for fractured patella and issued crutches); October 1972 STR (treated for back pain related to his September 1972 accident); September 1972 STR (while driving in Vietnam the Veteran's truck was overturned and he injured his left knee); January 1972 STR (Treated in Okinawa); February 1971 STR (left elbow sore from trauma in Guam where a safety pin tire popped out and pressed arm again cage); April 1970 STR (thrown from piece of equipment and struck a tree injuring right arm); February 1970 STR (left leg pain associated with pain from back injury). In addition, in a September 2014 treatment record the Veteran's physician from the Mobile outpatient VA clinic indicated that the Veteran has severe and permanent impairments of the spine that are quite debilitating. The Veteran reported that he was in a body cast for his spinal injury after an explosion while under fire in 1973. His current problems were consistent with such an injury. As noted above, in a July 2019, the Board remanded this issue for additional development. Specifically, the Board noted that the Veteran should be afforded a VA examination to determine whether his right shoulder and left hip pain caused functional limitation. Pursuant to the remand instructions, in April 2021, the Veteran was afforded VA examinations. Regarding the left hip disability, the VA examiner determined that the Veteran was diagnosed with a rotor cuff repair. He opined that a nexus was not established. The examiner explained that during service, the Veteran's left hip disability, was acute only. There was no evidence of a left hip injury that occurred during the accident in 1972. The earliest x-ray report of the left hip disability was in December 2010, and the Veteran was diagnosed with chronic arthralgias. There was no evidence of chronicity of care and symptoms were subjective only. Regarding the right shoulder disability, the Veteran was diagnosed with arthropathy. The examiner opined it was less likely than not that the Veteran's disability was related to service. He explained that the Veteran's separation exam did not indicate any right shoulder or arm health concerns or conditions at the time of discharge. Post-Discharge Medical records identify/confirmed no medical treatment sought for an arm and shoulder condition within one year of discharge. There was no indication of right arm condition that occurred during the accident in 1972 that veteran reports. The Board finds these opinions inadequate for adjudicative purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the examiners do not address the Veteran's multiple inservice injuries, the September 2014 treatment record indicating that the Veteran's "current problems" could be related to his inservice spinal injuries, or the Veteran's lay assertions regarding symptoms since service, to include his contention that he did not seek treatment after service because he did not know that he could. As such a remand is warranted for new VA opinions. 4. Entitlement to a TDIU due to service-connected disabilities, prior to April 27, 2017 is remanded. The claim for entitlement to a TDIU is inextricably intertwined with the claims for service connection for hypertension, left shoulder disability, and left hip disabilities, since such disabilities may contribute to unemployability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, a remand is warranted. 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. Obtain an addendum opinion from an appropriate physician regarding the nature and etiology of the Veteran's hypertension. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The VA examiner should address whether it is at least as likely as not (i.e. a 50 percent probability) that the Veteran's hypertension began during or is otherwise due to active service, to include as due to herbicide exposure. In doing so, the examiner is reminded that in 2018, the National Academies of Sciences, Engineering, and Medicine (NAS) issued an Agent Orange Update in which the NAS upgraded the likelihood of an association between hypertension and exposure to herbicide agents from "limited or suggestive" evidence of an association to "sufficient" evidence of an association. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Obtain a VA addendum opinion to determine the nature and etiology of the Veteran's left hip and right shoulder disabilities. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available to and reviewed by the examiner. The examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left hip disability is a result of active service were incurred during service, to include as due to multiple inservice injuries. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right shoulder disability is a result of active service were incurred during service, to include as due to multiple inservice injuries. In doing so, the examiner should address the Veteran's STRs, lay assertions, buddy statements, and the September 2014 treatment record. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. The examiner is also reminded that non-documentation of chronicity of care and/or treatment after the Veteran's in-service injury is an insufficient rationale to support a negative opinion in light of Veteran's lay reports of a continuity of symptomatology since service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After all the above development has been accomplished, readjudicate the Veteran's TDIU claim. 5. If the benefits sought remains denied, furnish the Veteran a supplemental statement of the case (SSOC) and return the case to the Board. 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.