Citation Nr: 21074266 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-58 064 DATE: December 14, 2021 ORDER Entitlement to an increased rating of 30 percent for bilateral hearing loss, prior to January 5, 2021, is granted. Entitlement to an increased rating in excess of 20 percent, for bilateral hearing loss, from January 5, 2021, is denied. REMANDED Entitlement to service connection for peripheral vascular disease (PVD) of the right lower extremity (RLE) is remanded. Entitlement to service connection for peripheral vascular disease (PVD) of the left lower extremity (LLE) is remanded. Entitlement to an increased rating in excess of 20 percent for a back disability, to include extraschedular consideration is remanded. Entitlement to an increased rating in excess of 20 percent for a right knee disability, to include extraschedular consideration is remanded. Entitlement to an increased rating in excess of 20 percent for a left knee disability, to include extraschedular consideration is remanded. FINDINGS OF FACT 1. Prior to January 5, 2021, the objective medical evidence shows that the Veteran's bilateral hearing loss manifested by a Level VI hearing acuity, bilaterally. 2. From January 5, 2021, the objective medical evidence shows that the Veteran's bilateral hearing loss was manifested by hearing acuity of no more than Level V, bilaterally. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 30 percent, but not higher, for bilateral hearing loss, prior to January 5, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for an increased rating in excess of 20 percent for bilateral hearing loss, from January 5, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1963 to August 1986. By way of procedural history, the Board notes that in a February 2021 rating decision, the Veteran was granted a staged increased rating of 20 percent for his bilateral hearing loss, from January 5, 2021, and continuing the Veteran's noncompensable rating for the period prior to January 5, 2021. However, as the ratings for both staged periods did not represent the maximum allowable disability ratings under the Diagnostic Code for hearing loss, the Veteran's claim for increased rating, for both periods, remains on appeal, and appropriately before the Board. In August 2021, the Veteran requested an extension of time during which to select a representative to assist with his appeal. Since then, the Veteran has not submitted a signed Power of Attorney or otherwise identified a new representative. As the Veteran has not appointed a representative to date, the Board will proceed with reviewing his appeal as a pro se claimant. He is advised that he may select an authorized representative if he so desires, as explained in a July 2021 correspondence from the Board. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Entitlement to a compensable rating for bilateral hearing loss, prior to January 5, 2021 The Veteran seeks to establish a compensable rating for his service-connected bilateral hearing loss for this earlier period, prior to January 5, 2021. Here, a close review of relevant medical evidence of record reveals that the Veteran's hearing acuity does meet the objective criteria for a higher rating of 30 percent, but not higher, during this time period; as such, the Veteran's claim for an increased rating for his bilateral hearing loss is granted. Hearing loss is evaluated under Diagnostic Code 6100. The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id. See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). However, not all patterns of hearing loss are rated in this manner. For example, if the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). See also 38 C.F.R. §§ 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). The Veteran was provided a VA hearing evaluation in both February 2016 and February 2017. During his initial examination for his hearing loss claim in 2016, the VA examiner noted that the Veteran's hearing acuity could not be tested as the Veteran was not able to comprehend the instructions for the examination. The examination report noted no objective testing for either puretones or speech discriminations, and ultimately noted no diagnosis for hearing loss, as no tests were performed. The examiner noted a review of the Veteran's claims file and medical history, noting that the Veteran's hearing loss progression and noise exposure during service, and ultimately noted no determination regarding any determination of worsening during the session at present. In February 2017 the Veteran was afforded another VA audiological examination; this time such testing was possible. Puretone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 80 75 75 71.25 LEFT 60 75 80 85 75 These findings correspond to Level VI hearing, bilaterally. 38 C.F.R. § 4.85, Table VIA. Under Table VII, a designation of Level VI hearing in the right ear and Level VI hearing in the left ear yields a 30 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Here, as an exceptional pattern of hearing impairment, as defined under 38 C.F.R. § 4.86 was shown, with all the puretone results returning at 55 Hertz or above, application under Table VIA is appropriate. Here, a close review of both the lay and medical evidence of record, to include VA and private treatment records, reveals no additional objective testing regarding the Veteran's hearing acuity during the claims/appeals period. As such, the Board finds that the February 2017 VA examination to be the most probative evidence of record regarding the severity of the Veteran's hearing acuity. In arriving at this conclusion, the Board has considered the Veteran's lay assertions regarding the severity of his hearing loss. Although he is competent to report symptoms of his hearing loss, he is not competent to report that his hearing loss warrants a higher evaluation under VA's tables for rating hearing loss disabilities. As noted, the Board is bound to apply the VA rating schedule, which provides that the assignment of disability ratings for hearing impairment is derived from prescribed testing and a mechanical rating formula. Therefore, based on the objective medical evidence, the Board finds that the Veteran's bilateral hearing loss has been manifested by hearing acuity of no more than Level VI, bilaterally. Consequently, as such level of hearing acuity correlates to a 30 percent rating, the Board must find that the Veteran's claim for an increased rating for hearing loss, must be granted, for the period prior to January 5, 2021. 2. Entitlement to an increased rating in excess of 20 percent, for bilateral hearing loss, from January 5, 2021 For the period from January 5, 2021, the Board find that the Veteran's claimed bilateral hearing loss is only limited to a Level V hearing acuity, bilaterally. To this end, the preponderance of the objective medical evidence of record, during this claims period is against the finding for a higher rating, and as such, the Veteran's claim for this period, must be denied. The only objective audiometric testing of the Veteran's hearing acuity was conducted during the Veteran's VA audiological examination in January 2021. Here, Puretone thresholds, in decibels, were recorded as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 60 70 70 75 65.75 LEFT 60 65 65 65 63.75 The average puretone threshold was 65.75 dB in the right ear and 63.75 dB in the left ear. Word recognition scores, based on the Maryland CNC test, were not able to be tested by the VA examiner. While the Board acknowledges that Veteran's speech discrimination was again not able to be tested by the VA examiner, the lack of such score is not detrimental to the Board's rating of the Veteran's hearing acuity. Here, as the Veteran's hearing acuity again demonstrated exceptional hearing loss, Table VIA is for application, to assess his hearing loss; the use of Table VIA does not require any speech recognition score. As such, assessment of the Veteran's claim is not precluded without the Maryland CNC test results. According, when applying the Veteran's puretone to Table VIA, results in numerical designations of Level V, bilaterally. Bilateral hearing acuity of Level V equates to a 20 percent disability rating. 38 C.F.R. § 4.85, Table VII. The Board has reviewed the statements from the Veteran made during the course of this appeal and to health professionals and, while they report the difficulties the hearing impairment causes, these statements do not establish that a disability rating in excess of 20 percent is warranted for any part of the appeal period because such a rating is determined from the application of mechanical audiometric testing and speech recognition scores. Consequently, based on the above, the Board finds that, for the period from January 5, 2021, the Veteran's disability picture more nearly approximates the criteria for a 20 percent disability rating; therefore, an increased disability rating in excess of 20 percent for bilateral hearing loss must be denied. 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for PVD of the RLE is remanded. 2. Entitlement to service connection for PVD of the LLE is remanded. In January 2021, the Veteran was afforded a VA examination to assess the nature and etiology of his claimed bilateral PVD of the lower extremities. The Board, however, find that such examination report is incomplete and further development is required by the VA. Here, in the January 2021 VA examination report, the VA examiner provided a negative nexus opinion regarding the development of ischemic heart disease (IHD) and failed to speak to the Veteran's claimed PVD. As such, the Board finds that an opinion regarding the nature and etiology of his claimed PVD remains in want. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Board finds that not only did the January 2021 VA examination opinion fail to speak to the correct disability, a later acquired March 2021 addendum opinion failed to address the etiology of the Veteran's claimed PVD on a medical basis. Here, the March 2021 opinion concluded that the Veteran's PVD was not due to the Veteran's exposure to herbicides during his active service and based such findings on the fact that PVD is not among the presumptively service-connected disabilities related to herbicide exposure. The Board finds that such finding is considered inadequate, as it relies on a legal basis, other than a medically based rationale. As such, as such development for this claim is incomplete, the Board must remand this claim for the VA to fulfill its duty to the Veteran. 3. Entitlement to an increased rating in excess of 20 percent for a back disability, to include extraschedular consideration is remanded. 4. Entitlement to an increased rating in excess of 20 percent for a right knee disability, to include extraschedular consideration is remanded. 5. Entitlement to an increased rating in excess of 20 percent for a left knee disability, to include extraschedular consideration is remanded. With regards to the Veteran's claim for increased rating for his back and bilateral knees, the Board finds that remand is required for the RO to refer the claims to the Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration in the first instance. To this end, the Board notes that ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: "A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). In determining whether a case should be referred for extraschedular consideration, the Board must initially compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Board has jurisdiction to review determinations of the Director of Compensation Service or Undersecretary for Benefits regarding a Veteran's entitlement to an extraschedular rating. Anderson v. Shinseki, 23 Vet. App. 423 (2009). The Board finds that extraschedular consideration is appropriate for these claimed disabilities regarding the Veteran's back and bilateral knees. Here, the Board notes that the Veteran has been unable to perform the requisite testing maneuvers for his back and knees, to assess the objective loss of range of motion for each disability. To this end, his most recent VA examinations noted that the Veteran's inability to test range of motion was due to the Veteran's confinement to wheelchair on a permanent basis, and his array of other service-connected disabilities which prevented the Veteran from physical testing for either his back or knees. Accordingly, the Board finds that considering the other evidence of record, to explicitly include the Veteran's lay assertions of pain and functional limitations, the Board finds that referral for extraschedular consideration is warranted. As the VA cannot test the Veteran under the criteria contemplated by the appropriate Diagnostic Codes, extraschedular consideration must be considered upon remand. The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate them with the claims file. 2. Ensure that the Veteran is scheduled for VA examination(s) to determine the nature and etiology of his claimed PVD of the bilateral lower extremities. The examiner(s) is requested to review the claims file, to include this remand. Following review of the claims file, the examiner(s) should provide an opinion on the following: (a) The examiner should indicate whether the Veteran has a currently diagnosed peripheral vascular disease disability, to include deep venous thrombophlebitis. (b) For any diagnosed peripheral vascular disease disability, the examiner should indicate whether it is at least as likely as not (a probability of 50 percent or greater) that the disability is caused by or related to service, to include herbicide exposure in service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Refer the Veteran's entitlement to increased ratings for his back and bilateral disability on an extraschedular basis to VA's Under Secretary for Benefits or Director of Compensation and Pension for adjudication in accordance with 38 C.F.R. § 3.321(b). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.