Citation Nr: 21006122 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-65 459 DATE: February 3, 2021 ORDER Prior to October 31, 2019, entitlement to a noninitial compensable rating for the Veteran’s service-connected bilateral hearing loss is denied. Beginning October 31, 2019, a 10 percent rating, but no higher, for the Veteran’s service-connected bilateral hearing loss is granted. REMANDED Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. REFERRED At the October 2019 Board hearing, the Veteran’s son alleged that the Veteran suffered from depression due, in part, to his service-connected disabilities. In July 2020, the Veteran’s son also submitted a letter vaguely indicating that the Veteran suffered from chronic illnesses, such a bilateral knee, foot, back, and neck pain, due to his active duty service. Accordingly, these matters are REFERRED to the RO solely for the issuance of the appropriate standardized claims form to the Veteran. See 38 C.F.R. §§ 3.155, 20.904(b) (formerly 19.9(b)). FINDINGS OF FACT 1. Prior to October 31, 2019, the Veteran has not demonstrated bilateral hearing loss to a compensable degree, as the Veteran exhibited no worse than level I auditory acuity in either ear. 2. Beginning October 31, 2019, the Veteran’s bilateral hearing loss has been manifested by no worse than level II auditory acuity in the right ear and level V auditory acuity in the left ear. CONCLUSIONS OF LAW 1. Prior to October 31, 2019, the criteria for entitlement to a noninitial compensable rating for the Veteran’s service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. 2. Beginning October 31, 2019, the criteria for entitlement to a noninitial 10 percent rating, but no higher, for the Veteran’s service-connected bilateral hearing loss have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1961 to November 1964 and from January 1965 to November 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In October 2019, the Veteran and his son provided sworn testimony before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. As to the claim adjudicated below, neither the Veteran nor his representative has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); See also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board notes that the Veteran’s increased rating claim for his service-connected bilateral hearing loss disability was last adjudicated by the RO in the October 2020 Supplemental Statement of the Case. In November 2020, the RO uploaded additional VA treatment records to the electronic claims file; however, these newly received VA treatment records are not relevant to the increased rating claim for the Veteran’s service-connected bilateral hearing loss. See 38 C.F.R. § 20.1305(c) (formerly 20.1304(c)). Thus, the Board may proceed with adjudication of the claim without obtaining a waiver of initial RO consideration of this new evidence. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Noninitial Increased Rating Claim for the Veteran’s Service-Connected Bilateral Hearing Loss Prior to March 12, 2020, the Veteran is in receipt of a noncompensable rating for his service-connected bilateral hearing loss under Diagnostic Code 6100, 38 C.F.R. § 4.85. In an October 2020 rating decision, the RO assigned a higher 10 percent rating, effective March 12, 2020. As this is not a full grant of the benefits, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran seeks a higher noninitial disability rating on appeal. Ratings for service-connected bilateral hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. In evaluating service-connected bilateral hearing loss, disability ratings are derived by 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); 38 C.F.R. § 4.85. Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state-licensed audiologist including a controlled speech discrimination test and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a) when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear is to be evaluated separately. Id. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be evaluated to the next higher Roman numeral. Id. Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85(c). The Veteran was afforded a VA audiological examination in November 2015. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 25 25 30 LEFT 20 20 30 30 35 The average pure tone threshold in the Veteran’s right ear was 24 decibels, while the average pure tone threshold in the Veteran’s left ear was 29 decibels. The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained a 92 percent score in both ears. Word recognition scores were deemed appropriate for both ears. A pure tone average threshold of 24 decibels in the right ear with a 92 percent speech discrimination score equates to level I hearing acuity. 38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 29 decibels in the left ear with a 92 percent speech discrimination score equates to level I hearing acuity. Id. Level I hearing acuity in both ears equates to a noncompensable rating for hearing impairment. 38 C.F.R. § 4.85, Table VII. Table VIA is not applicable in this circumstance because the testing results were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear, nor was the Veteran’s pure tone threshold 30 decibels or less at 1000 Hertz or more than 70 decibels at 2000 Hertz in either ear. Furthermore, the November 2015 VA examiner concluded that speech discrimination test results were appropriate for the Veteran. Therefore, the regulatory requirements for use of Table VIA were not met. The Veteran was afforded an additional VA audiological examination in March 2020. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 40 45 60 LEFT 25 30 35 45 50 The average pure tone threshold in the Veteran’s right ear was 43.75 decibels, while the average pure tone threshold in the Veteran’s left ear was 40 decibels. The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained an 86 percent score in the right ear and a 64 percent score in the left ear. Word recognition scores were deemed appropriate for both ears. A pure tone average threshold of 43.75 decibels in the right ear with an 86 percent speech discrimination score equates to level II hearing acuity. 38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 40 decibels in the left ear with a 64 percent speech discrimination score equates to level V hearing acuity. Id. Level II hearing acuity in the right ear and level V hearing acuity in the left ear equates to a 10 percent rating for hearing impairment. 38 C.F.R. § 4.85, Table VII. Table VIA is not applicable in this circumstance because the testing results were not 55 decibels or more at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear, nor was the Veteran’s pure tone threshold 30 decibels or less at 1000 Hertz or more than 70 decibels at 2000 Hertz in either ear. Furthermore, the March 2020 VA examiner concluded that speech discrimination test results were appropriate for the Veteran. Therefore, the regulatory requirements for use of Table VIA were not met. The Veteran’s electronic claims file does not contain any other results from audiometric testing conducted within the appellate period. Prior to October 31, 2019, the Veteran’s service-connected bilateral hearing loss did not reach a compensable level as demonstrated by the objective results of the November 2015 VA examination. While the evidence did not objectively confirm a worsening of the Veteran’s bilateral hearing loss disability to a 10 percent rating until the March 12, 2020 VA examination, the Board has elected to award this higher 10 percent rating as of the October 31, 2019 hearing date; and to this limited extent, the appeal is granted. Following the November 2015 VA examination, it was not until the October 31, 2019 Board hearing that the Veteran fully articulated why he believed his hearing loss was worsening—an assertion which was substantiated by the March 2020 VA examination. Accordingly, October 31, 2019 is the first date that it was factually ascertainable that the Veteran exhibited a worsening in his service-connected bilateral hearing loss disability sufficient to warrant a higher 10 percent rating. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be factually ascertained). Since October 31, 2019, the Board finds no probative audiometric or speech discrimination results that support a rating in excess of 10 percent under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board acknowledges the lay statements from the Veteran and his son regarding the severity of the Veteran’s service-connected bilateral hearing loss. At the November 2015 VA examination, the Veteran reported difficulty hearing conversations, at times. At the March 2020 VA examination, the Veteran reported that his television was “insanely loud,” he could not hear the telephone ring or the doorbell, and he had to discontinue participation in his church due to hearing impairment. At the October 2019 Board hearing, the Veteran testified that he required a loud volume to hear the television, and he had difficulty hearing conversations in loud settings, such as church. At the October 2019 Board hearing, the Veteran’s son testified that he noticed a decline in the Veteran’s hearing acuity. The lay statements provided by the Veteran and his son are competent and credible regarding the Veteran’s symptomatology, as both witnesses have firsthand knowledge of the Veteran’s experience with hearing loss. While the Board recognizes the sincere belief from the Veteran and his son that the Veteran’s service-connected bilateral hearing loss warrants a higher rating during the appellate period, the objective medical evidence does not support such an assertion, beyond the limited grant of benefits awarded in this decision. Because the degree of hearing loss impairment relies on strict application of the rating schedule, the Board affords more evidentiary weight to the objective medical evidence of record than the subjective lay statements of the Veteran and his son. Lastly, at the October 2019 Board hearing, the Veteran testified to his subjective belief that his service-connected bilateral hearing loss resulted in vertigo and balance problems. In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims (Court) stated that the schedular rating criteria for hearing loss did not contemplate the functional effects of dizziness or vertigo. See id. at 369. In Long v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2371, No. 16-1537 (Dec. 30, 2020), the Court reiterated that extraschedular consideration is only appropriate after VA has exhausted all other tools for a disability rating, to include the application of secondary service connection principles. See id. at *12; see also Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). More recently, in Bailey v. Wilkie, 2021 U.S. App. Vet. Claims LEXIS 13, No. 19-2661 (Jan. 6, 2021), the Court issued a precedential decision holding that the Board is required to develop and adjudicate claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for an increased rating for a primary service-connected disability, as the secondary service connection claim is ancillary to the increased rating claim under 38 C.F.R. § 3.155(d)(2). See id. at *30-34. The facts of the present matter are distinguishable from Bailey because when the Veteran filed the September 2015 formal claim seeking an increased rating for his service-connected bilateral hearing loss, he also filed a petition to reopen his previously denied claim of vertigo. Subsequently, the RO denied entitlement to service connection for labyrinthitis (claimed as vertigo) in the December 2015 rating decision—the same rating decision giving rise to the instant appeal for an increased rating for bilateral hearing loss—and the Veteran explicitly chose not to appeal that determination within the applicable one-year appellate period. See 38 C.F.R. § 19.52 (formerly 20.302). Given this procedural posture, the Board finds that the Veteran has already requested service connection for vertigo (as secondary to his service-connected bilateral hearing loss) contemporaneous in time with his request for an increased rating for his service-connected bilateral hearing loss, and he elected not to pursue the vertigo claim further. VA has already considered the matter in the December 2015 rating decision, and that determination is final. If the Veteran wishes to continue to pursue a claim of entitlement to service connection for vertigo, he is invited to file VA form 20-0995, Decision Review Request: Supplemental Claim, supported by new and relevant evidence. Moreover, the Board finds that the Veteran’s allegation of vertigo related to his bilateral hearing loss does not warrant extraschedular consideration, as the Veteran may still pursue entitlement to service connection for vertigo using the schedular rating devices. See Long and Morgan, supra; see e.g. 38 C.F.R. § 4.87 Diagnostic Code 6204 (peripheral vestibular disorder is a condition subject to service connection consideration and eligible for evaluation under the General Rating Schedule). In sum, the preponderance of the evidence weighs against assignment of a compensable disability rating prior to October 31, 2019 for the Veteran’s service-connected bilateral hearing loss, and the Veteran’s request for a higher rating during this period is denied. The Board has assigned a higher 10 percent rating for the Veteran’s service-connected bilateral hearing loss, effective October 31, 2019, but the preponderance of the evidence weighs against a higher rating thereafter. To the limited extent that the Board has assigned the 10 percent rating to the earlier date of October 31, 2019, the Veteran’s appeal is granted, otherwise the Veteran’s request for a rating higher than 10 percent since October 31, 2019 is denied. The Board has considered whether an inferred claim of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised in conjunction with the increased rating claim adjudicated above; however, such a claim was not asserted by the Veteran and is not reasonably raised by the record. See Rice v. Shinseki¸22 Vet. App. 447, 453-54 (2009). Accordingly, the Board declines to take jurisdiction over an inferred TDIU claim under Rice. REASONS FOR REMAND Although the Board regrets the additional delay, the below referenced claims must be remanded for additional evidentiary development to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims. Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. At the October 2019 Board hearing, the Veteran indicated that he was primarily seeking service connection for a bilateral eye disability manifested by halo vision, i.e., he sees bright circles of light around light sources. He indicated that this phenomenon began following an incident of concussive trauma during service—where he slipped and fell from a tank and injured his head—and has continued to the present. In a July 2020 lay statement, the Veteran’s son indicated that this concussive episode occurred during the Veteran’s service in Germany. The Veteran’s service personnel records reveal that the Veteran served in Germany from February 1965 to January 1968 (it is unclear from the record why the Veteran remained in Germany for approximately 49 days after his discharge from service). While the Veteran’s service treatment records document an incident of left eye trauma in March 1964, this was treated at a clinic in Fort Hood, Texas, not in Germany, as alleged. A review of the currently available service treatment records does not indicate any treatment for a concussion during the Veteran’s service in Germany. Additionally, at the October 2019 Board hearing, the Veteran testified that he was counseled regarding hypertension and type II diabetes mellitus while on active duty service, yet none of the available service treatment records contain reference to or mention of hypertension or type II diabetes mellitus. Upon closer inspection, it appears that the Veteran’s service treatment records are incomplete. When the RO requested the Veteran’s service treatment records in March 2007, they only sought the records from the Veteran’s first period of service, September 1961 to November 1964. While the records that were received contain the Reports of Medical History and Reports of Medical Examination for service entry and separation for both of the Veteran’s periods of service, they do not contain any clinical/dispensary records covering the Veteran’s second period of service from January 1965 to November 1967. VA’s duty to assist requires VA to make as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Upon remand, the RO is requested to undertake appropriate efforts to obtain the Veteran’s complete service treatment records from his second period of active duty service. Additionally, the Board notes that the Veteran identified Norwood Clinic as a private treatment provider whose records are relevant to his appeal. The Veteran has submitted several forms authorizing VA to obtain these private treatment records, yet the RO has made no such attempts. See 38 C.F.R. § 3.159(c)(1). Upon remand, the RO is requested to solicit an updated and completed VA form 21-4142 from the Veteran authorizing VA to obtain the complete private treatment records from Norwood Clinic. If such an authorization is received, the RO is requested to undertake appropriate efforts to obtain these outstanding relevant private treatment records. The Board notes that September 2015 private treatment records from SMC indicate that the Veteran’s claimed bilateral eye disability was treated in August 2015 at “the foundation.” In January 2016, the RO requested the Veteran’s complete records from CE Foundation, yet the response did not contain the August 2015 treatment records referenced in the SMC records. Upon remand, the RO is requested to solicit an updated and completed VA form 21-4142 from the Veteran authorizing VA to obtain the complete private treatment records from the CE Foundation. If such an authorization is received, the RO is requested to undertake appropriate efforts to obtain these outstanding relevant private treatment records. In the December 2019 Board remand, the RO was requested to schedule the Veteran for a VA eye examination and the VA examiner was requested to identify the Veteran’s current eye disabilities and opine on whether they were at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s reported in-service head injury and exposure to asbestos and dust. The VA examiner conducted an examination in September 2020 and confirmed diagnoses of primary open angle glaucoma, pseudophakia, and exotropia. The VA examiner declined to link these disabilities to service, explaining, in pertinent part: These conditions are not related to any in-service injury, event, or illness as he left the service in 1967. It is less likely than not that any event in 1967 would cause a disability that did not manifest until 2008 (glaucoma, cataracts) or later (exotropia). Eyes were noted as normal at entrance and discharge exam. The Board finds that this VA medical opinion is inadequate due to its failure to adhere to the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA examiner did not specifically address whether the Veteran’s reported in-service head injury or exposure to asbestos/dust caused his current eye disabilities. Moreover, the VA examiner did not address the Veteran’s primary contention that following the alleged in-service head injury, he has experienced halo vision on a continuous basis. Additionally, the Veteran has alleged that his current eye disabilities may be the result of in-service exposure to a sexually transmitted disease, and his service treatment records document a single episode of gonorrhea in December 1962. See December 2015 VA form 21-0958. He has also alleged that his current eye disabilities may be the result of the March 1964 trauma to this left eye. See November 2017 VA form 9. Upon remand, the RO is requested to obtain an addendum VA medical opinion that appropriately considers the Veteran’s medical circumstances in light of these theories of entitlement to service connection. Lastly, the RO is requested to obtain updated VA treatment records from November 2020 to the present. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2020 to the present. 2. Obtain the Veteran’s complete service treatment records from his second period of service from January 1965 to November 1967, to include all clinical/dispensary records. 3. Ask the Veteran to complete a VA Form 21-4142 authorizing VA to obtain the complete treatment records from Norwood Clinic and CE Foundation. If authorization is provided, make two requests for the authorized records from these private treatment providers, unless it is clear after the first request that a second request would be futile. 4. THEN, obtain a VA addendum medical opinion addressing the etiology of the Veteran’s claimed bilateral eye disabilities. Following a complete review of the electronic claims file, including a copy of this REMAND, an appropriate VA examiner is requested to address the following inquiry: Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral eye disabilities were incurred in or are otherwise etiologically related to the Veteran’s active duty service, to include his reported head injury, his exposure to asbestos/dust, his March 1964 left eye trauma, and/or his December 1962 episode of gonorrhea? The VA examiner is requested to consider and address the Veteran’s hearing testimony stating that he experienced halo vision (i.e., he sees bright circles of light around light sources) following his in-service head injury, a symptom which has remained to the present. This opinion must be supported by a complete explanatory rationale based on the examiner’s medical expertise; the examiner’s clinical experience; current medical principles; and citations to the record, as appropriate. 5. Following the receipt of the additional service treatment records and/or private treatment records, it shall be left to the RO’s discretion as to whether any additional evidentiary development is necessary regarding the Veteran’s claims of entitlement to service connection for hypertension and type II diabetes mellitus. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.