Citation Nr: 21073166 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-09 457 DATE: December 7, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for epilepsy is remanded. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to June 1971. These matters come before the Board of Veterans' Appeals (Board) from a January 2013 rating decision. The Board remanded these matters in December 2018 and July 2021. 1. An initial compensable rating for bilateral hearing loss is denied. The January 2013 rating decision granted service connection for bilateral hearing loss, rated as noncompensable. The Veteran is appealing the assigned rating. He believes that he should have received a rating of 10 percent. 02/27/2013, NOD. In July 2021, the Board remanded for a new VA examination. The record, however, reflects that the request for a VA examination was cancelled at the Veteran's request. 08/02/2021, Exam Request. There is no argument or indication that the Veteran had good cause for canceling the examination. In view of this, the Board concludes that the Veteran has waived his right to a contemporaneous VA examination. Therefore, the Board will rely on the evidence already of record. 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. 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. 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). Turning to the evidence, a January 2013 VA examination reveals that the Veteran reported difficulty hearing and understanding conversations in his places of work. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 10 20 40 21.25 100% LEFT 10 10 45 50 28.75 100% Applying these results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of difficulty understanding conversations. The Veteran is competent to report difficulty with his hearing; however, 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 v. Principi, 3 Vet. App. 345 (1992). Furthermore, 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 Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Similarly, the Board acknowledges the Veteran's assertions that his bilateral hearing loss has worsened during the appeal period. Such assertions, however, are not sufficient to warrant a higher rating, as such ratings of hearing loss need to be based on objective audiological findings. In this regard, the Board has twice remanded the Veteran's claim to afford him a contemporaneous VA examination. These efforts, however, have been unsuccessful. The record shows that the most recent request for a VA examination was cancelled by the Veteran, with no showing of good cause. VA's duty to assist in developing the pertinent facts and evidence in connection with a claim is not a one-way street, and the Veteran has a responsibility to cooperate in such development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, and under the circumstances described above, the Board finds that VA has satisfied its duty to assist in the present case. To summarize, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for epilepsy is remanded. The July 2021 Board remand instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA opinion regarding the etiology of the Veteran's hypertension and epilepsy. The record shows that a request for a VA examination was canceled at the Veteran's request. There is, however, no indication that the AOJ attempted to obtain a VA opinion based only on review of record. As the AOJ did not substantially comply with the Board's July 2021 remand directives, the Board finds that another remand of these issues is necessary to gain substantial compliance with prior remand directives. These matters are REMANDED for the following actions: 1. Obtain any recent VA treatment records. 2. Obtain a VA examination opinion from a physician (M.D.) regarding the etiology of the Veteran's hypertension. The Veteran's claims file (to include this decision) must be reviewed by the examiner providing the opinion. Upon review of the claims file, pertinent medical history, and the relevant medical literature, the examiner should provide an opinion responding to the following: (a) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's hypertension is causally or etiologically related to service, to include presumed in-service herbicide exposure? The Board is cognizant that there is no VA presumption of service connection for hypertension as due to herbicide exposure. The question here is, considering the NAS elevation of hypertension to the "Sufficient Evidence" category, what is the likelihood that this Veteran's hypertension is related to his herbicide exposure given his medical history, family history, absence of other risk factors, etc. See Veterans and Agent Orange: Update 11 (2018), NAS. (b) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's hypertension is caused by, the result of, or otherwise related to, taking daily salt tablets as required by the Army during his one-year tour of duty in Vietnam? In rendering these opinions, the examiner should assume that the Veteran was exposed to herbicides in service. Additionally, while the examiner is free to cite to studies by the National Academy of Sciences or any other medical treatises in rendering the opinion, the examiner may not rely solely on the fact that the Veteran's conditions are not on the presumptive list of diseases associated with herbicide exposure. Rather, the opinion should explain why any statistical or medical studies are found to be persuasive or unpersuasive and should address whether there are other risk factors that might be the cause of the Veteran's conditions or whether they manifested in an unusual manner. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. Please provide a comprehensive rationale. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 3. Obtain a VA examination opinion from a physician (M.D.) to determine the nature and etiology of the Veteran's epilepsy condition. The claims file, including a copy of this remand, must be made available to and be reviewed. Upon review of the claims file, pertinent medical history, and the relevant medical literature, the examiner should provide an opinion responding to the following: (a) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's epilepsy is causally or etiologically related to service, to include presumed in-service herbicide exposure? (b) Is it at least as likely as not (probability of approximately 50 percent) that the Veteran's epilepsy is either 1) proximately due to OR 2) aggravated by his claimed hypertension. In rendering these opinions, the examiner should assume that the Veteran was exposed to herbicides in service. The examiner's report must reflect consideration of the Veteran's entire documented medical history and assertions and all lay evidence. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner must provide a thorough rationale for each opinion given. 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.