Citation Nr: 21006482 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-11 561 DATE: February 4, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss prior to August 5, 2015, and an evaluation in excess of 10 percent on or after August 5, 2015 is denied. REMANDED Entitlement to service connection coronary artery disease, status post myocardial infraction, due to herbicide exposure is remanded. Entitlement to service connection for type II diabetes mellitus, due to herbicide exposure is remanded. Entitlement to a total disability evaluation due to individual unemployability based upon service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to August 5, 2015, the Veteran had Level IX hearing loss in the right ear and Level I hearing loss in the left ear. 2. From the period on or after August 5, 2015, at worst, the Veteran had Level XI hearing loss in the right ear and Level I hearing loss in left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for bilateral hearing loss were not met prior to August 5, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2019). 2. The criteria for an increased evaluation in excess of 10 percent for bilateral hearing loss on or after August 5, 2015 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Air Force from June 1971 to June 1991. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Montgomery Regional Office (RO). In October 2018, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A transcript is of record. The claims were remanded in May 2019 for further development. They have since been returned to the Board for appellate review. As it relates to the increased evaluation claim for bilateral hearing loss, neither the Veteran, his representative nor the record have raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to a compensable evaluation prior to August 5, 2015, and an evaluation in excess of 10 percent on or after August 5, 2015 is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already 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, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of pure tone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85 and the statement of the case) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level “V” and the poorer ear had a numeric designation of Level “VII” the percentage evaluation is 30 percent. See 38 C. F. R. §4.85. Regulations also provide that in cases of exceptional hearing loss, i.e., when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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 will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the pure tone threshold is 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be evaluated to the next higher Roman numeral. Prior to August 5, 2015 The Veteran’s bilateral hearing loss is currently assigned a noncompensable evaluation prior to August 5, 2015, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. During a March 2014 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 70 65 70 55 65 36 LEFT 35 35 50 50 43 100 As indicated above, the average pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz were 65 decibels in the right ear and 43 decibels in the left ear. The Maryland CNC controlled speech discrimination test revealed a speech recognition ability of 36 percent in the right ear and 100 percent in the left ear. These audiometric findings equate to Level IX hearing loss in the right ear and Level I hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, it is apparent that the currently assigned noncompensable evaluation for the Veteran’s bilateral hearing loss is accurate and appropriately reflects his bilateral hearing loss prior to August 5, 2015. See 38 C.F.R. § 4.85. The Board has also considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment. The audiological report demonstrates that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more in the right ear. Therefore, the provisions of 38 C.F.R. § 4.86 are applicable. See 38 C.F.R. § 4.86 (a), (b). When entered into chart VIa, the results yield a Level V hearing loss in the right ear. Because this value is lower, the hearing loss level in table VI (IX) will be applied in this case. Thus, the March 2014 examination has resulted in findings corresponding to a noncompensable evaluation. There are no other applicable audiological results during the appeal period demonstrating that an increased evaluation is warranted prior to August 5, 2015. The Board has also considered the Veteran’s lay assertions and other lay statements of record regarding his hearing loss. However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when a loss of hearing has reached a specified measurable level. As such, an increased evaluation for the period prior to August 5, 2015, is not warranted. After August 5, 2015 The Veteran’s bilateral hearing loss is assigned a 10 percent evaluation on and after August 5, 2015, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. During an August 2015 authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 75 75 70 60 70 24 LEFT 40 45 60 60 51 94 As indicated above, the average pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz were 70 decibels in the right ear and 51 decibels in the left ear. The Maryland CNC controlled speech discrimination test revealed a speech recognition ability of 24 percent in the right ear and 94 in the left ear. These audiometric findings equate to Level XI hearing loss in the right ear and Level I hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. The Board finds that the provisions of 38 C.F.R. § 4.86 are applicable to the right ear hearing loss only. See 38 C.F.R. § 4.86(a), (b). When entered into chart VIA, the results yield a Level VI hearing loss in the right ear. Because this value is lower, the hearing loss level in table VI (XI) will be applied in this case. Thus, the August 2015 examination has resulted in findings corresponding to a 10 percent evaluation. During a January 2016 authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 80 75 85 75 79 16 LEFT 20 15 35 40 28 100 As indicated above, the average pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz were 79 decibels in the right ear and 28 decibels in the left ear. The Maryland CNC controlled speech discrimination test revealed a speech recognition ability of 16 percent in the right ear and 100 in the left ear. These audiometric findings equate to Level XI hearing loss in the right ear and Level I hearing loss in the left ear. See 38 C.F.R. § 4.85, Table VI. The Board finds that the provisions of 38 C.F.R. § 4.86 are applicable to the right ear hearing loss only. See 38 C.F.R. § 4.86(a), (b). When entered into chart VIA, the results yield a Level VII hearing loss in the right ear. Because this value is lower, the hearing loss level in table VI (XI) will be applied in this case. Thus, the January 2016 examination has resulted in findings corresponding to a 10 percent evaluation. During a March 2020 authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 75 60 70 65 68 40 LEFT 40 40 55 60 49 96 As indicated above, the average pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz were 68 decibels in the right ear and 49 decibels in the left ear. The Maryland CNC controlled speech discrimination test revealed a speech recognition ability of 40 percent in the right ear and 96 in the left ear. These audiometric findings equate to Level IX hearing loss in the right ear and Level I hearing loss in the left ear, which indicates a noncompensable evaluation. See 38 C.F.R. § 4.85, Table VI. The Board finds that the provisions of 38 C.F.R. § 4.86 are applicable to the right ear hearing loss only. See 38 C.F.R. § 4.86(a), (b). When entered into chart VIA, the results yield a Level VI hearing loss in the right ear. Because this value is lower, the hearing loss level in table VI (IX) will be applied in this case. Notably, the March 2020 examination has resulted in findings corresponding to a noncompensable evaluation. There are no other applicable audiological results demonstrating that an increased evaluation is warranted on or after August 5, 2015. The Board has also considered the Veteran’s lay assertions and other lay statements of record regarding his hearing loss. However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when a loss of hearing has reached a specified measurable level. As such, an increased evaluation for the period on or after August 5, 2015, is not warranted. REASONS FOR REMAND Entitlement to service connection coronary artery disease and type II diabetes mellitus is remanded. Initially, the Board notes that the Veteran’s representative, in a December 2020 appellate brief, asserted the RO had not attempted to obtain all records to verify the Veteran’s service and his exposure to herbicides while in service. As noted above, the claims were remanded in May 2019. The Board instructed the RO to verify the Veteran’s contention that he was exposed to herbicides while serving at Korat Royal Thai Air Force Base (RTAFB). The Veteran assets that he served on the base around March 1973. The RO was instructed to obtain pay records, TDY records, flight manifests, or unit records to confirm this service. While it appears the RO obtained additional military personnel records, it is unclear that every effort was made to verify whether he or his unit had ever served at the Korat RTAFB on a temporary duty assignment while he was stationed in Taiwan. Rather, the primary focus of the RO’s search was on whether herbicides were ever used on the base. Therefore, the claim must be remanded for the previous action to be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). Entitlement to a total disability evaluation due to individual unemployability based upon service-connected disabilities (TDIU) is remanded. In a December 2020 appellate brief, the Veteran’s representative asserted he is unable to work due to his hearing loss. Specifically, he indicated the condition creates a safety issue for him at work. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. Therefore, the issue of TDIU has been raised by the record. Under these circumstances, the AOJ should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should undertake necessary action to verify the Veteran’s contended service at the Korat RTAFB during a period of TDY in 1973. The Veteran was stationed in Taiwan from June 1972 to August 1973. The Veteran asserts that he served at Korat RTAFB in Thailand on TDY around March 1973, for 76 days. In this regard, attempt to obtain information of whether the Veteran or his unit were ever on TDY to Korat RTAFB, including requesting any available pay records from that period, TDY orders, flight manifests, or unit records which may document such service. All attempts to verify the Veteran’s reported TDY service in Thailand must be documented in the claims file, and the RO should provide a formal finding if it is unable to verify the Veteran’s reported service. 2. The AOJ should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the AOJ may decide to pursue further development of the Veteran’s employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.