Citation Nr: 21077323 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-17 041 DATE: December 29, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran's service-connected bilateral hearing loss disability has not more nearly approximated the criteria for a compensable initial evaluation when mechanically applying the diagnostic criteria to the audiological testing results. CONCLUSION OF LAW The criteria for the assignment of a compensable initial for service-connected bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to August 1975. This matter comes before the Board of Veteran's Appeals (Board) from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Veteran's representative was not present at the hearing; however, the Veteran consented to proceeding with the hearing before the undersigned without his representative. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902 (c). The Board observes that in April 2019, VA received a Rapid Appeals Modernization Program (RAMP) Opt-In Election Form from the Veteran. However, RAMP was a test program that ended in February 2019. Since the Veteran's RAMP Opt-In Election Form was received after the cutoff date for processing RAMP appeals, his form cannot be accepted. Therefore, the Board will adjudicate the appeal under the legacy appeals process. 1. Entitlement to a compensable disability rating for bilateral hearing loss The Veteran seeks a compensable disability rating for his hearing loss. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100 (2018). In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The Veteran's hearing loss disability was last examined by VA in November 2016. See Hearing Loss and Tinnitus Disability Benefits Questionnaire (Hearing Loss DBQ) of November 2016. The November 2016 Hearing Loss DBQ revealed an average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz of 57.5 decibels for the right ear and 55 decibels for the left ear. Maryland CNC testing, which was found appropriate for this Veteran, revealed speech recognition ability of 96 percent in both ears. The Board notes that the none of the puretone threshold findings in this examination are not consistent with an exceptional pattern of hearing impairment, pursuant to 38 C.F.R. § 4.86. As such, those considerations are not for application in the present case. 38 C.F.R. § 4.86. As such, under Table VI of 38 C.F.R. § 4.85, the findings from the November 2016 examination are equivalent to level I hearing acuity for both ears. Applying the level I hearing acuity for the left ear and level I hearing acuity for the right ear findings to Table VII, results in a noncompensable rating. The Board recognizes that the Veteran's average puretone findings for the right ear of 57.5 decibels are borderline between level I hearing acuity and level II hearing acuity pursuant to Table VI. However, even resolving reasonable doubt in the Veteran's favor and assigning a level II hearing disability for his right ear by rounding up the average puretone findings of the November 2016 examination, still results in a noncompensable rating when the results are applied to Table VII. Thus, the probative medical evidence has not shown any audiometric results that are supportive of a compensable rating of at least 10 percent, based on the mechanical application of hearing loss measurements to the diagnostic criteria of §4.85. Accordingly, for the reasons explained above, the Board finds the preponderance of the evidence is against the claim and the Veteran is not entitled to a compensable rating for hearing loss. 38 C.F.R. § 4.85 (f). In reaching this conclusion the Board has considered that the most recent VA examination of record dates back to November 2016. However, the mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined as a matter of course. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). Here, absent any indication that the November 2016 examination was inadequate and absent any assertion or indication of a change in the severity of the condition since the last examination, the Board finds that no examination is necessary to adjudicate the matter. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea. In favor of his claim, the Veteran asserts that his symptoms began while he was in active service. See hearing transcript. Medical records show the Veteran uses a C-pap machine as treatment for his sleep apnea. See generally VA medical records for January 2017. As the Veteran's medical records establish a diagnosis of sleep apnea, and there is an indication, through assertions of the Veteran, that the disability may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Thus, upon remand, the Veteran must be afforded an examination and a medical opinion must be obtained on the likely etiology of his sleep apnea. The matter is REMANDED for the following actions: 1. Update VA medical records. 2. Schedule the Veteran for an examination regarding his sleep apnea and request a medical opinion on the likely etiology of his condition. The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.