Citation Nr: 21006594 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-27 771 DATE: February 4, 2021 ORDER An increased rating in excess of 50 percent disabling for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a frontal lobe tumor is remanded. Entitlement to service connection for spinal stenosis of the lumbar spine is remanded. FINDING OF FACT The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level VIII in the right ear and no worse than Level IX in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 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 October 1961 to October 1963. This matter comes before the Board of Veterans’ Appeal (“Board”) on appeal from an April 2016 rating decision. In May 2020, the Board remanded the above issues for additional action, issuing a supplemental statement of the case, which was issued in September 2020. An increased rating in excess of 50 percent disabling for bilateral hearing loss is denied. The Veteran contends that he is entitled to a higher rating because his hearing loss is worse than it was during his last evaluation. See NOD received 10/25/2018 at page 2. Alternatively, he contends that his hearing loss represents such an “exceptional and unusual disability picture” that he is entitled to an extraschedular rating for his bilateral hearing loss based on his overall disability picture. See Appellate Brief received 1/21/2021 at page 2. 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). During the period on appeal, the Veteran was provided two VA examinations for bilateral hearing loss. A March 2016 VA examination revealed that the Veteran reported difficulty understanding speech in groups and crowds. See C&P Exam received 3/22/2016 at page 5. 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: 3/22/2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 85 85 90 105+ 91 62% LEFT 90 80 85 100 89 52% Applying the results to Table VI, the findings yield a numeric designation of Level VIII in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown in both ears. Applying the results to Table VIA yields Level IX in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level IX for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. Here, both tables yielded the same results. After the Board’s May 2020 remand, a new examination was provided in August 2020. The Veteran reported having difficulty “hearing what people are saying” when asked about the functional impact of his bilateral hearing loss. See C&P Exam received 8/31/2020 at page 4. 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: 8/31/2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 85 80 90 105+ 90 74% LEFT 90 85 90 100 91.25 74% Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level VII in the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level IX for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown in both ears. Applying the results to Table VIa yields Level VIII in the right ear and Level IX in the left ear. Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level IX for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 50 percent disability rating under Diagnostic Code 6100. Here, the exceptional pattern results in a higher, 50 percent rating. Based on the evidence above, a rating in excess of 50 percent 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 statements of the functional loss due to his hearing loss, e.g. difficulty hearing in groups and difficulty hearing what people are generally saying. 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). 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 50 percent 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). The Veteran’s representative raised extra-schedular consideration due to the combined effects of the Veteran’s bilateral hearing loss and his service-connected psychological disorder. See Appellate Brief received 1/21/2021 at page 2. However, the Board finds that an extra-schedular referral to the Director of Compensation and Pension is not warranted because the Veteran’s complaints of interference with understanding conversations and hearing in large groups is already compensated in the rating criteria. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Additionally, extraschedular consideration based on the combined effect is no longer available as of January 8, 2018 per VA rule. See 38 C.F.R. § 3.321(b)(1); see also 82 Fed. Reg. 57,830 (Dec. 8, 2017) (eff. Jan. 8, 2018). REASONS FOR REMAND 1. Entitlement to service connection for a frontal lobe tumor is remanded. The Veteran contends that the Veteran’s frontal lobe tumor was caused by a traumatic brain injury (TBI) since during a VA examination for major depressive disorder an examiner checked “no” when asked if TBI was present instead of checking “TBI is not present”. See Appellate Brief received the 1/21/2021 at page 2. The Veteran’s representative argues that by marking “no” rather than “TBI not present” the VA has conceded that TBI exists in the Veteran. Id. The Board finds that a remand for a VA examination and medical opinion is necessary in light of the representative’s argument. The Board’s own review of the Veteran’s service treatment records found no TBI nor has the Veteran stated that a TBI was incurred during his active duty service. The Board clarifies that TBI is not conceded nor is the Veteran currently service connected for a TBI. The medical report that indicated “no” rather than “TBI not shown in records reviewed” was from a Veteran submitted Disability Benefits Questionnaire (DBQ) and not a VA examination. See Disability Benefits Questionnaire (DBQ) Veteran Provided received 10/23/2018. A review of the Veteran’s medical treatment record shows an MRI confirmed frontal lobe tumor in 2014. See Capri received 10/03/2014 at page 9. The etiology of the tumor is unclear from the Board’s review of the medical treatment records. That said, since no VA examiner has examined the Veteran nor opined on whether his frontal lobe tumor was caused by his service, the Board finds a remand is necessary to properly address the Veteran’s contention and for an examiner to opine on the etiology of the Veteran’s frontal lobe tumor. 2. Entitlement to service connection for spinal stenosis of the lumbar spine is remanded. The Veteran contends that his spinal stenosis of the lumbar spine was caused by or incurred during his active military service. See VA 21-526EZ, Fully Developed Claim received 2/16/2016. The Board finds that a remand for a VA examination is warranted since the Veteran has a current diagnosis of spinal stenosis and treatment for muscle sprain in the back during his active duty service. Spinal stenosis has appeared on the Veteran’s active problems list during the period on appeal, accordingly the Board finds that the Veteran has a current disability for VA purposes. See Capri received 9/27/2017 at pages 50, 66; see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a Veteran satisfies the current disability requirement when a disability exists at the time the claim is filed or during its pendency, even if it resolved itself prior to adjudication). A review of the Veteran’s service treatment record shows a single notation of muscle sprain in the back upper treated during service in August 1963. See STR-Medical received 3/04/2011 at page 23. Since no VA examination was provided, the Board does not have adequate medical evidence with which to decide this matter. Accordingly, the Board will remand for a VA examination and medical opinion. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). These matters are REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination for his frontal lobe tumor. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below.   The examiner is asked to provide a response to the following: (a) Is the Veteran’s frontal lobe tumor at least as likely as not related to service, including to a purported TBI? (b) Is the Veteran’s frontal lobe tumor at least as likely as not proximately due to his service-connected bilateral hearing loss or any other service-connected disability? (c) Is the Veteran’s frontal lobe tumor at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his bilateral hearing loss or another service-connected disability? Provide a rationale to support the opinions. The examiner is also asked to discuss the etiology of the Veteran’s frontal lobe tumor. 2. Schedule the Veteran for a VA examination for his spinal stenosis of the lumbar spine. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. Please also complete the functional impact section of the examination report. The examiner is asked to provide a response to the following: (a) Is spinal stenosis of the lumbar spine at least as likely as not related to service? (b) Is it at least as likely as not that the spinal stenosis of the lumbar spine (1) began during active service, (2) manifested within the presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, Associate 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.