Citation Nr: 21071709 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-21 482 DATE: December 1, 2021 ORDER A compensable rating for bilateral hearing loss is denied. A compensable rating for chronic obstructive pulmonary disease (COPD) is denied. A rating higher than 20 percent for diabetes mellitus type 2 is denied. FINDINGS OF FACT 1. The evidence does not show that the Veteran's bilateral hearing loss manifests at a level that approximates the criteria for a compensable rating. 2. The evidence does not show that the Veteran's COPD manifests as FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted, as required for a compensable rating. 3. The Veteran's diabetes mellitus requires medical and one or more daily injection of insulin but does not require a restricted diet or regulation of activity. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code 6100. 2. The criteria for a compensable rating for COPD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.96, 4.97, DC 6604. 3. The criteria for a disability rating higher than 20 percent for diabetes mellitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to October 1970. For his service, the Veteran received a Combat Infantryman Badge, Silver Star, and Purple Heart. These matters come before the Board of Veterans' Appeals (Board) from December 2016 and January 2017 rating decisions. The Veteran testified at a Board hearing in January 2020. The Board remanded these matters in March 2020. 1. A compensable rating for bilateral hearing loss is denied. The Veteran seeks a higher rating for his bilateral hearing loss. 10/18/2016, Fully Developed Claim. His bilateral hearing loss is currently rated as noncompensable. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a puretone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. At the outset, the Board notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85, 4.86. A November 2016 VA examination shows a puretone threshold average of 37.5 and a speech discrimination score of 92 percent in the right ear, and a puretone threshold average of 22.5 and a speech discrimination score of 96 percent in the left ear. A December 2019 VA examination shows a puretone threshold average of 42 and a speech discrimination score of 84 percent in the right ear, and a puretone threshold average of 26 and a speech discrimination score of 96 percent in the left ear. A February 2020 VA examination shows a puretone threshold average of 46 and a speech discrimination score of 92 percent in the right ear, and a puretone threshold average of 26 and a speech discrimination score of 96 percent in the left ear. These audiometric findings combine for a either a Roman numeral I (November 2016 and February 2020) or a Roman numeral II (December 2019) for the right ear and a Roman numeral I for the left ear, per Table VI. See 38 C.F.R. § 4.85. A roman numeral II and roman numeral I combine for a zero, or non-compensable, rating in Table VII. Id. Similarly, two roman numerals I combine for a zero, or non-compensable, rating in Table VII. Id. Based on these competent findings, the Veteran's bilateral hearing loss does not meet the requirements for a compensable rating for the appeal period. 38 C.F.R. § 4.85. Regarding functional impact, the Veteran has indicated that his hearing loss manifests as a tendency to mishear what people say. This functional impact amounts to an "inability to hear or understand speech or to hear other sounds in various contexts" and, as such, is clearly contemplated by the schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (indicating that when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria). Insofar as the Veteran has reported functional limitations due to his bilateral hearing loss, the Board notes that VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. These medical evidence and test results are more probative and outweigh any lay subjective reports of a more severe degree of disability, because they directly address the rating criteria for hearing loss. Finally, the Board acknowledges the argument that the Veteran's bilateral hearing loss creates a safety issue for the Veteran. 09/27/2021, Appellate Brief. The Board acknowledges that the Veteran's hearing loss may pose as safety risk for the Veteran. Any such safety risk, however, does not necessarily lead to a higher rating. Disability ratings are based on the level of functional impairment and, in the case of hearing loss, are calculated based on objective findings regarding the Veteran's hearing impairment. As discussed above, the Veteran's hearing loss manifests in difficulty understanding others and such impairment is encompasses by the currently assigned rating. Neither the lay or medical evidence establishes that the Veteran's hearing loss is so severe that it results in functional impairment commensurate with a safety risk. In the absence of such evidence, the mere possibility that the Veteran's hearing loss may pose a safety risk is not enough to determine that the Veteran's hearing loss results in functional impact greater than the one reported by the Veteran or established by the multiple hearing tests. In sum, the preponderance of the evidence is against a compensable rating for the Veteran's service-connected bilateral hearing loss. Therefore, reasonable doubt does not arise, and the claim must be denied. 38 C.F.R. § 4.3. 2. A compensable rating for COPD is denied. The Veteran seeks a higher rating for his COPD. 10/18/2016, Fully Developed Claim. His COPD is currently rated as noncompensable. COPD is rated under Diagnostic Code (DC) 6604. For the Veteran to be entitled to the minimum rating of 10 percent, the evidence must show that the Veteran's COPD manifests as FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. 38 C.F.R. § 4.97. Generally, pulmonary function tests (PFT's) are required to evaluate COPD. 38 C.F.R. § 4.96(d). When the PFT's are not consistent with clinical findings, the evaluation shall be based on the PFT's unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. Id. Post-bronchodilator studies are required when PFT's are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. Id. When evaluating based on PFT's, the adjudicator shall use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the adjudicator shall use the pre-bronchodilator values for rating purposes. Id. When there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, the adjudicator shall use the test result that, according to the examiner, most accurately reflects the level of disability. Id. If the FEV-1 and the FVC are both greater than 100 percent, the adjudicator shall not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. Id. Turning to the evidence, a November 2016 VA examination shows FEV-1 of 92 percent predicted, FEV-1/FVC of 81 percent, and DLCO of 83 percent predicted. The examiner indicated that that the FVC percent predicted most accurately reflected the Veteran's level of disability. Regarding functional impact, the Veteran reported dyspnea, lightheadedness, and dizziness after one flight of stairs. VA treatment records show that the Veteran underwent a PFT in June 2018. This test, however, consisted of simple spirometry and was not a complete PFT with pre- and post-bronchodilator. 01/27/2020, VAMC Other Output / Reports, at 339. More recently, a September 2020 PFT shows FEV-1 of 86 percent predicted and FEV-1/FVC of 112 percent. According to the examination report, DLCO testing was not completed because it was deemed "not indicated for the Veteran's condition". The examiner indicated that that the FVC percent predicted most accurately reflected the Veteran's level of disability. Regarding functional impact, the Veteran reported shortness of breath after one flight of stairs. The Veteran stated that his condition had been the same off and on over the years. Based on these results, the Board finds that the criteria for the minimum rating of 10 percent for COPD have not been met. In detail, two PFTs fail to show FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted, as required for a rating of 10 percent under DC 6604. The Board acknowledges that the DLCO testing was not performed at the time of the September 2020 PFT. The Board, however, finds that this deficiency does not render the VA examination inadequate. As discussed above, two VA examiners have stated that the FVC percent predicted (as opposed to DLCO) was the test result that most accurately reflected the Veteran's level of disability. Additionally, both lay and medical evidence establishes that the Veteran's respiratory symptoms have been stable during the period on appeal. In fact, the September 2020 PFT shows slightly better results than the November 2016 PFT. Moreover, a September 2017 VA treatment note states that the Veteran's DLCO was within normal levels. 01/27/2020, VAMC Other Output / Reports, at 416. As there is no indication that the Veteran has an abnormal DLCO level or that the severity of his COPD is best represented by his DLCO level, the Board finds that the absence of DLCO testing during the September 2020 PFT does not render the examination inadequate. The Board further finds that a remand for the sole purpose of conducting DLCO testing would only serve to delay adjudication of this matter, as such testing is unlikely to produce results that lead to a different and favorable outcome for the Veteran. The Veteran's representative contends that that the 2020 VA examination was inadequate "in that there [was] no consideration given for functional impairment/loss (38 CFR § 4.10 & 4.40)." 09/27/2021, Appellate Brief, at 2. The September 2020 VA examination report reflects that the examiner mark no to the question of does the Veteran's respiratory condition impact his ability to work. It also reflects in section II (Medical History), that the Veteran has symptoms such as shortness of breath and he gets this especially when coming up from the basement with a bucket of clothes. Additionally, as noted above, PFTs were conducted. The Board finds that when looking at the overall examination report, the Veteran's functional loss from his service-connected COPD was considered by the examiner via competent lay evidence and competent medical evidence. As such, the Board finds the 2020 examination report to be adequate for rating purposes and finds it to have probative value and weight as to showing the effects on the Veteran's daily activity and employment impact. 38 C.F.R. §§ 4.1, 4.10. As the weight of the evidence is against a finding that the Veteran's COPD manifests at a level that meets the minimum criteria for a compensable rating, the Board finds that a compensable rating for COPD is not warranted. 3. A rating higher than 20 percent for diabetes mellitus type 2 is denied. The Veteran seeks a higher rating for his diabetes. 10/18/2016, Fully Developed Claim. His diabetes is currently rated as 20 percent disabling. Under Diagnostic Code (DC) 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet; a 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities; a 60 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated; and a 100 percent rating when the diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities), with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. A November 2016 VA examination indicates that the Veteran requires insulin and oral hypoglycemic agents from treatment of his diabetes. Per the examination report, he does not require regulation of activities as part of medical management of diabetes. Similarly, there is no indication that he requires a restricted diet. The examination report indicates that the Veteran has had episodes of ketoacidosis or hypoglycemic reactions, but these have not required hospitalization or visits to a diabetic care provider with a frequency of at least twice a month. At his January 2020 Board hearing, the Veteran stated that he was on a restricted diet and that his activities were regulated due to his diabetes. Based on this testimony, as well as VA treatment records that discussed the Veteran's diet and exercise regime, the Board, in March 2020, remanded for a new VA examination. The Veteran underwent a VA examination in November 2020. The examination report indicates that treatment for the Veteran's diabetes consisted for prescribed oral hypoglycemic agents, with more than one injection of insulin required per day. The examiner did not check the box for "managed by restricted diet" and answered "no" to the question of whether the Veteran requires regulation of activities as part of medical management of his diabetes mellitus type 2. He was noted to visit his diabetic care provider less than two times per month for episodes of ketoacidosis or hypoglycemia, with no hospitalizations over the past 12 months. The only complication noted was erectile dysfunction, which is service-connected as part of his diabetes. The November 2020 VA examiner's findings regarding diet restrictions and regulation of activity are consistent with VA treatment records, which fail to show that the Veteran has been prescribed either a restricted diet or regulation of activity. Most recently, a July 2020 VA treatment note indicates that the plan to treat the Veteran's diabetes consists only of medication and insulin. 08/20/2020, CAPRI, at 8. That same treatment note summarizes information regarding diet and exercise from previous visits. It documents the Veteran's efforts to follow a healthy diet and exercise. Regarding diet, the noted indicates that the Veteran, between 2019 and 2020, was eliminating most carbohydrates and was eating more vegetables. Regarding exercise, it was noted the Veteran was trying to swim on a daily basis. Based on the evidence above, the Board finds that the weight of the evidence is against a finding that the Veteran's diabetes requires a restricted diet or regulation of activity. Rather, the evidence shows that treatment for the Veteran's diabetes consist of medication and treatment. While VA treatment records include discussion of the Veteran diet and exercise, to include the Veteran's efforts to lead a healthy lifestyle, these records include no indication that the Veteran has been prescribed either a restricted diet or regulation of activity. Rather, these records suggest that the Veteran does not have medically-prescribed dietary restrictions. Similarly, his exercise regime, which includes swimming, weighs against a finding that he has been prescribed regulation of activity for treatment of his diabetes. In the weight of the evidence does not tend to show that the Veteran has been prescribed either a restricted diet or regulation of activity for treatment of his diabetes mellitus type 2, the Board concluded that the criteria for a rating higher than 20 percent have not been met. Finally, the Board acknowledges the argument that the November 2020 VA examination is inadequate because it was conducted by a nurse practitioner, as opposed to an endocrinologist. 09/27/2021, Appellate Brief. The fact that the VA examination was conducted by a nurse practitioner, by itself, does not render the examination inadequate. As the Veteran's representative concedes in its appellate brief, a nurse practitioner is considered a medical professional and is presumed to have the medical expertise required to conduct a VA examination. Moreover, there is no indication that the examiner in this case lacks the required medical expertise or that the examiner reached conclusions that are inconsistent with the evidence of record. Rather, as explained above, the examiner's conclusions are consistent with the Veteran's VA treatment records. For these reasons, the Board finds that the November 2020 VA examination is probative and adequate for adjudication. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.