Citation Nr: 21007302 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-09 950 DATE: February 9, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to August 11, 2015, and in excess of 20 percent thereafter is denied. REMANDED Entitlement to service connection for residuals of a cervical spine/stenosis neck injury is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. FINDINGS OF FACT 1. Prior to April 11, 2015, Veteran’s service-connected bilateral hearing loss was manifested by no worse than Level II hearing acuity in his right ear and Level III hearing acuity in his left ear. 2. From April 11, 2015, the Veteran’s service-connected bilateral hearing loss was manifested by no worse than Level VI hearing acuity in his right ear and Level V hearing acuity in his left ear. CONCLUSIONS OF LAW 1. For the period prior to April 11, 2015, the criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code (DC) 6100. 2. Form April 11, 2015, the criteria for entitlement to a rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86 DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1953 to August 1956. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated in January 2013 from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas (RO). Within the January 2013 rating decision the RO granted a noncompensable rating for bilateral hearing loss effective September 28, 2011. In October 2015, the RO increased the Veteran’s rating to 20 percent, effective August 11, 2015. As this increased rating does not represent a total grant of the benefit sought on appeal the claim for increase remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). This matter was remanded in October 2017 for further development. This appeal has been advanced on the Board’s docket pursuant to 38C.F.R. §20.900(c). 38U.S.C.A. §7107(a)(2). 1. Increase rating for bilateral hearing loss The Veteran asserts an increase rating is warranted as his hearing loss is worse than his current ratings. In that regard, he states that his physicians have repeatedly indicated he is going deaf. He maintains that he should be assigned a 20 to 30 percent rating for the period on appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The appeal stems from the initial grant of service connection. As a result, the relevant period on appeal is from September 28, 2011, date of service connection, forward. Further, as indicated, staged rating for the Veteran’s hearing loss disability have been applied. 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, DC 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). The Veteran received three VA audiological examinations during the appeals period. None of the examinations show hearing loss severe enough to warrant increase ratings. A November 2011 VA examination reveals that the Veteran reported generally being “unable to hear well.” The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 65 75 65 LEFT 40 45 60 65 70 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88.90 percent in the left ear. Puretone average in the right ear was 61.25 and in the left ear was 60. The test results were found to be valid for rating purposes. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown An August 2015 VA examination reveals that the Veteran reported being unable to hear clearly. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 60 70 80 85 80 LEFT 40 50 70 80 90 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 76 percent in the left ear. Puretone average in the right ear was 78.75 and in the left ear was 72.5. The test results were found to be valid for rating purposes. Applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown for the left ear, was for the right ear. Table VIA for the right ear results in VII. Combining this with the left ear it results in a 20 percent. The Veteran was examined again in December 2020 VA examination wherein he stated that he didn’t “hear good at all.” He reported that “without [his] hearing aids I know you are talking, but I don’t know what is said at all. The hearing aids help, but I still don’t understand everything.” The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:   HERTZ 500 1000 2000 3000 4000 RIGHT 50 50 55 65 70 LEFT 45 45 50 50 60 Speech audiometry revealed speech recognition ability of 72 percent in the right ear and of 74 percent in the left ear. Puretone average in the right ear was 60 and in the left ear was 51. The test results were found to be valid for rating purposes. Applying the results to Table VI, the findings yield a numeric designation of Level VII in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown Treatment medical records do not differ from the above. Additionally, although throughout the appeal records note progressively worsening hearing loss, they do not reflect testing results documenting a hearing acuity that would warrant a compensable rating prior to April 11, 2015 or a rating in excess of 20 percent thereafter. Records also do not contain a finding by a physician that the Veteran was suffering from progressive deafness as essentially asserted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reports during his VA audiological examinations. To that end, the Veteran’s consistent statements of being unable to hear well even with the use of his hearing aids have been considered. The Board has also considered the Veteran’s assertions that his hearing loss warrants a 20 to 30 percent rating throughout the appeal as he is going progressively deaf. In that regard, the Veteran is competent to report difficulty with his hearing. However, disability ratings for hearing loss are derived from and predicated on mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Moreover, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran described in his reports to VA examiners and through written correspondence is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which are 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 compensable rating prior to April 11, 2015 or a rating in excess of 20 percent thereafter for service-connected bilateral hearing loss. REASONS FOR REMAND 3. Entitlement to service connection for residuals of a cervical spine/stenosis neck injury. 4. Entitlement to service connection for bilateral shoulder disability. This matter was remanded for an addendum opinion as to etiology of the above conditions as a previous November 2015 examination opinion was deemed inadequate. Addendum opinions were obtained in December 2020. The opinions are again inadequate therefore a remand is required. As to the cervical spine condition, the examiner merely stated, “there is no documented evidence that the Veteran sustained a cervical injury while on active duty a nexus is not established.” That finding is flawed for two reasons. First, such an opinion is conclusory. Second, the examiner again relied on the lack of service treatment records as the sole basis for denying the claim. However, as service treatment records are unavailable due to fire, examination request forms have explicitly instructed the examiners to consider the Veteran’s statements regarding in-service injury as they were deemed credible and consistent with the places, types, and circumstances of his service. See October 2015 VA Form 21-2507a and July 2020 Exam Request. The examiner’s failure to consider the Veteran’s statements paired with the lack of rationale requires remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); As to the right shoulder, a November 2015 VA examiner diagnosed right and left shoulder strains. However, the December 2020 VA examination was negative for a diagnosed right shoulder condition and thus no opinion as to the etiology of the right should condition was provided. The Board notes that service connection may be granted upon competent evidence that a claimed disability existed at any time during the appeal period, even if the disability resolves prior to VA’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). As such, an opinion is required to address the nature and etiology of the right shoulder strain which was previously diagnosed during the period on appeal. Finally, as to the left shoulder, the examiner opined against the claim by characterizing the Veteran’s in-service injury as acute, noting the record lacked evidence of chronicity of care, and noting his symptoms were subjective only. The examiner’s findings are inadequate. First, no rationale was provided for the characterization of the Veteran’s in-service injury as acute particularly given his reports of on-going symptoms. Second, no rationale was provided explaining why subjective reports of on-going symptomatology was insufficient to support his claim. On remand, an addendum should be provided. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the nature and the etiology of any current neck and shoulder disabilities. The examiner must review the claims file, including a complete copy of this Remand. If a physical examination is deemed necessary, such should be scheduled. The following questions should be addressed: 1. Identify/diagnose any chronic disability of the neck (cervical spine) and shoulders present during the period on appeal (September 2011) forward. The examiner is reminded that pain in of itself may constitute a disability for VA purposes if it results in functional impairment. 2. If a disorder of the right and/or left shoulder is not identified, the examiner should indicate if the condition has resolved or was misdiagnosed. Notably, the examiner should reconcile the findings of a November 2015 VA examiner, which diagnosed right and left shoulder strains, and a December 2020 VA examination that identified no disability of the right shoulder. 3. For any diagnosed condition, provide an opinion as to whether it was at least as likely as not (50 percent probability or more) that incurred during service. In rendering the opinion, the examiner is advised that service treatment records, with the exception of the Veteran’s separation examination, were destroyed due to fire. His reports of in-service injury are considered consistent with the places, types, and circumstances of his service. The relevance of the Veteran’s statements must be addressed in any opinion that is rendered. If the Veteran’s statements are deemed insufficient to support service-connection a detailed rationale must be provided explaining why. The mere fact that the record lacks service treatment records cannot be the sole basis for denying the Veteran’s claim. All clinician(s) must include a detailed supportive rationale and explanation of any clinical findings and/or opinion presented. If the examiner(s) is/are unable to present an opinion and/or discussion without resorting to speculation, it should be so stated with a complete rationale as to why the examiner(s) arrived at this conclusion. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.