Citation Nr: A21018596 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 201026-115498 DATE: November 22, 2021 ORDER Entitlement to an initial compensable evaluation for right ear hearing loss is denied. New and relevant evidence (NRE) having been received, the petition to readjudicate the claim of entitlement to service connection for hypertension (HTN) is granted. NRE having been received, the petition to readjudicate the claim of entitlement to service connection for neck condition, status post-operative x 2, is granted. REMANDED Entitlement to service connection for type II diabetes mellitus (DM2), including as due to HTN, is remanded. Entitlement to service connection for HTN is remanded. Entitlement to service connection for ischemic heart disease (IHD), including as due to HTN, is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for neck condition is remanded. FINDINGS OF FACT 1. The Veteran's right ear hearing loss has manifested at Level I throughout the initial rating period on appeal. An exceptional pattern of hearing impairment has not manifested. 2. In an October 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a neck condition and HTN. The Veteran did not appeal the rating decision nor was additional related evidence received within one year of the decision. 3. In January 2019 the Veteran applied to reopen the neck and HTN claims, which the AOJ reopened and arranged VA examinations. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for right ear hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.85, Diagnostic Code (DC) 6100 (Table VII). 2. The criteria for readjudicating the claims of entitlement to service connection for a post-operative neck condition and HTN have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(d), 3.2501(a)(1). REASONS AND BASES FOR FINDING AND CONCLUSION In a June 2019 rating decision, the AOJ denied service connection for left ear hearing loss, DM2, HTN, and determined that NRE had not been received to reopen the neck and HTN claims. See 06/04/2019 Rating Decision. The Veteran applied for a Higher-Level Review (HLR). See 05/28/2020 VA 20-0996. In the HLR, the AOJ determined that there was duty-to-assist error and obtained additional medical input. Afterward, the AOJ continued the denials. See 06/10/2020, 07/17/2020 Rating Decisions. The Veteran appealed for Direct Review by a Veterans Law Judge, and the appeal was duly docketed at the Board. See 10/26/2020 VA Form 10182; 01/09/2021 BVA Letter. Hence, the appeal is properly before the Board. 1. Initial evaluation of right ear hearing loss Increased Rating General Requirements Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflects the elements of disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991). Rating Criteria 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 (Hz)). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. A nonservice-connected ear is assigned Level I. 38 C.F.R. § 4.85(f). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (db) 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 Hz, and 70 db or more at 2000 Hz, 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). 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). Discussion The Veteran has not presented any specific argument or cited any evidence to support a compensable rating. See 06/09/2020 HLR Informal Conference; 10/26/2020 Third Party Correspondence. The March 2019 examination report (03/20/2019 C&P Exam, 1st Entry) reflects that the Veteran's right ear manifested as follows: 1000 Hz, 25 db; 2000 Hz, 30 db; 3000 Hz, 30 db; 4000 Hz, 40 db, for an average of 31.25. Speech recognition was 98 percent. The examiner indicated that the test results were valid for rating purposes. The Veteran did not report any impact on his ordinary conditions of daily life. The objective results show the right ear to have manifested at Level I. The left ear is not service-connected and thus receives a designation of I (see 38 C.F.R. § 4.84(f)). Level I for both ears intersect at the noncompensable rate. Table VII. The Board notes that the Veteran does not meet the criteria in 38 C.F.R. § 3.383 for pairing a service-connected and a nonservice-connected ear because the right ear does not manifest at 10 percent or more disabling. Hence, the Board finds that the preponderance of the evidence is against a compensable rating. 38 C.F.R. §§ 4.1, 4.85, DC 6100 (Table VII). Since the preponderance of the evidence is against a compensable rating, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102. 2. NRE having been received, the petition to readjudicate the claims of entitlement to service connection for neck condition and HTN is granted. Legal Requirements If NRE is presented or secured, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record. 38 C.F.R. § 3.156(d). New evidence means existing evidence not previously submitted to agency decisionmakers. Relevant evidence means evidence that tends to prove or disprove a matter in issue. 38 C.F.R. § 3.2501(a)(1). The Veteran initially applied for service connection in 2012. See 11/05/2012 VA 21-526. He failed to report for the examinations that the AOJ arranged to assist him. See 09/11/2013 C&P Exam. Hence, the AOJ adjudicated the claim on the basis of the evidence of record, see 38 C.F.R. § 3.655(b), which consisted of non-VA treatment records and the Veteran's service treatment records (STRs). Discussion The AOJ determined that additional medical evidence was received and arranged examinations for which the Veteran did report. The fact that examinations were arranged suggests that the AOJ determined that NRE was received. See 38 C.F.R. § 3.159(c)(4)(iii). The Board finds no basis on which to disturb this essentially favorable finding of the AOJ. REASONS FOR REMAND 1. Entitlement to service connection for DM2, including as due to HTN, is remanded. This issue is intertwined with the HTN claim. 2. Entitlement to service connection for HTN is remanded. A fee-basis examiner opined that it is not at least as likely as not that the Veteran's HTN had onset during his active service, notwithstanding several elevated blood pressure readings documented in the STRs. See 06/30/2020 C&P Exam, 1st Entry. The Veteran's representative asserts that the examiner's rationale for dismissing the elevated readings was inadequate and contrary to established medical studies. The Board notes that while the examiner noted the blood pressure readings recorded at dental examinations, and the Veteran's notation on his July 1991 Report of Medical History for his examination at separation, the examiner did not in fact note the blood pressure reading entered on the July 1991 Report of Medical Examination for Separation. The Board also notes that there are entries in the STRs where HTN was noted as part of the diagnostic assessment. See 12/26/2012 STR-MED, 2nd Entry, P. 45; STR-MED, 3rd Entry, P. 37. Hence, although medical examiners are presumed to be up to date on current medical studies, see Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012), the Board finds pre-decisional error because of an inadequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 3. Entitlement to service connection for IHD is remanded. This issue is intertwined with the HTN claim. 4. Entitlement to service connection for left ear hearing loss is remanded. It is not clear from the examination reports that the audiologists reviewed the entire record. In the 2019 examination report the audiologist inaccurately noted that there were no audiograms in the STRs and provided a positive nexus opinion for the right ear solely on the basis of the Veteran's assigned duties in aircraft maintenance. See 03/20/2019 C&P Exam. There are in fact several audiograms in the STRs. Neither is it clear that the audiologist who conducted the 2020 examination reviewed all of the audiograms in the STRs. Although the audiograms in the STRs are not necessarily favorable to the Veteran's claim, he is entitled to have all of the evidence of record reviewed by the medical professional. Hence, pre-decisional error is found. 5. Entitlement to service connection for neck condition is remanded. The Veteran reported that the onset of his neck pain was in 1989, and that it was due to his having worked in cramped spaces on aircraft. The medical examiner who provided the negative nexus opinion noted that the only evidence of an in-service occurrence was the Veteran's lay report. See 03/20/2019 C&P Exam, 3rd Entry. The Veteran's lay report of his in-service experiences is competent evidence that must be considered. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also 38 C.F.R. § 3.159(a)(2). Further, a claimant's lay testimony may not be rejected solely because of the absence of contemporaneous documentation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Thus, pre-decisional error is found in that it must be clarified that the examiner in fact considered the Veteran's lay report of the history of his neck disorder. The matters are REMANDED for the following action: 1. Send the claims file to the audiologist who conducted the June 2020 hearing examination, or an equally qualified audiologist. Ask the audiologist to provide an addendum report wherein he/she discusses the audiograms of record in the STRs. Do the audiograms of record show a significant threshold shift between the Veteran's enlistment in 1982 and his separation in 1991?; and, is it at least as likely as not that the left ear hearing loss had onset in active service or is otherwise causally connected to active service? The examiner must provide a full explanation for all findings and opinions rendered. 2. Send the claims file to the clinician who conducted the neck examination, or an equally qualified clinician. Inform the clinician that the Veteran's lay report of the history of his neck condition must be considered, and it may not be rejected solely because of the absence of medical documentation. (Emphasis added). If the absence of medical documentation is material, it must be explained. Hence, ask the clinician to provide an addendum report wherein the clinician indicates if the Veteran's lay report was in fact considered and explain whether it is consistent with the other evidence of record and the reasons why. (Continued on the next page) 3. Send the claims file to the clinician who provided the nexus opinion on the Veteran's HTN claim, or an equally qualified clinician. Ask the clinician to provide an addendum report wherein the clinician discusses the several elevated blood pressure readings and assessments of HTN documented in the STRs. The clinician is asked to provide a full explanation to support the prior negative nexus opinion, to include how the relevant medical studies apply, if at all, to the Veteran's individual case. 4. After the above is complete, the AOJ will readjudicate the claims as appropriate. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. T. Snyder 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.