Citation Nr: 21008032 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-03 813A DATE: February 11, 2021 ORDER Entitlement to an initial compensable rating for bilateral sensorineural hearing loss, prior to February 21, 2019, is denied. Entitlement to an increased rating of 10 percent from February 21, 2019, for bilateral sensorineural hearing loss, is granted. REMANDED Entitlement to service connection for a lower back disability is remanded. Entitlement to an increased rating in excess of 10 percent, since February 22, 2019, for bilateral sensorineural hearing loss is remanded. FINDINGS OF FACT 1. Prior to February 21, 2019, the Veteran’s bilateral hearing loss was manifested by no more than a Level I hearing impairment for the right ear and no more than a Level III hearing impairment for the left ear. 2. Since February 21, 2019, the Veteran’s bilateral hearing loss has been manifested by a Level II hearing impairment for the right ear and a Level V hearing impairment for the left ear. CONCLUSIONS OF LAW 1. The criteria for compensable rating for bilateral hearing loss, February 21, 2019, have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a 10 percent rating for bilateral hearing loss, from February 21, 2019, have been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1971 to June 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran participated in a virtual Board of Veterans’ Appeals hearing in December 2020. A transcript of the hearing is associated with the claims file and discussed below. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.10. Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). However, VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing are based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing (the Maryland consonant-vowel nucleus-consonant (CNC)), together with the average hearing threshold level, as measured by Puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to the VA rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Examination reports are required to include full descriptions of the functional effects caused by a hearing disability. Id. at 455. 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 Puretone 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 Puretone 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). When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. 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. Regarding all periods under consideration for the Veteran’s hearing loss, at the December 2020 Board hearing, the Veteran’s representative indicated that the results of the February 2019 audiological examination show that he now merits a 10 percent disability rating for his condition and that there is evidence for a higher evaluation, of 10 percent, based on his current treatment. The Veteran testified that he has been issued hearing aids, is currently receiving treatment through the VA. He stated that his hearing is getting worse as time goes on and that he has problems when there is a lot of background noise to where he cannot determine the speech and what is said, which causes him to misrepresent what has been said to him. He stated that he finds himself having to read lips. The Veteran also indicated that his appeal would be partially satisfied if granted a 10 percent rating for a portion of the claim. 1. Entitlement to an initial compensable rating for bilateral sensorineural hearing loss, prior to February 21, 2019, is denied. Turning to the medical evidence of record, the Veteran first underwent a VA examination in August 2011. The Veteran’s Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: HERTZ     1000 2000 3000 4000 Avg CNC RIGHT 10 50 55 65 45 94% LEFT 05 30 60 65 40 82% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level I 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. These hearing thresholds do not reflect an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.85 Table VIA. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. The Board acknowledges that the Veteran reported that he noticed hearing loss since 1972, he has to be able to see faces in order to understand speech, he is off-balance when walking and his physician prescribed Antivert. However, the Board finds probative that the examiner reported that he also denied true vertigo, ear pain, ear drainage and history of ear surgery. Thus, the Board finds that the examiner adequately considered the Veteran’s symptoms and thus the mechanical rating formula noted above adequately accounts for the Veteran’s symptoms. Then, the Veteran underwent a VA examination in November 2013. The Veteran’s Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: HERTZ     1000 2000 3000 4000 Avg CNC RIGHT 15 55 65 70 51 96% LEFT 15 40 65 70 48 92% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. These hearing thresholds do not reflect an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.85 Table VIA. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. The Board acknowledges that the Veteran reported that he has trouble hearing in background noise and with television. However, the examiner further noted that the Veteran’s hearing has remained relatively stable since the August 2011 examination. Thus, the Board finds that the examiner adequately considered the Veteran’s symptoms and the mechanical rating formula adequately accounts for the symptoms. Next, the Veteran underwent a VA examination in August 2015. The Veteran’s Maryland CNC Word List speech recognition score and puretone thresholds, in decibels, were as follows: HERTZ     1000 2000 3000 4000 Avg CNC RIGHT 30 60 65 70 56.25 94% LEFT 35 55 65 70 56.25 90% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. These hearing thresholds do not reflect an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.85 Table VIA. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. As the rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned for hearing acuity, because there is no audiometry of record suitable for rating purposes that shows he has hearing loss of greater severity, the assigned 0 percent rating is confirmed for the period prior to February 21, 2019. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85, DC 6100. The Board has considered the Veteran’s treatment records and lay statements. During the August 2015 examination, the Veteran reported having more difficulty hearing than when he last had his VA examination, particularly reported that he cannot hear his wife as well when she talked from other parts of his home and he could not see her. While lay testimony is competent as to features or symptoms, lay testimony is not competent to assess the severity level of a hearing loss disability as required by the mechanical application noted above. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). There is no existing medical evidence in the record to contradict such findings and the Board has no basis to contradict the conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, a compensable rating for bilateral hearing is not warranted prior to February 21, 209. 2. Entitlement to an increased rating of 10 percent from February 21, 2019, for bilateral sensorineural hearing loss is granted. The Veteran last underwent a VA examination on February 21, 2019. The examiner confirmed a diagnosis of bilateral sensorineural hearing loss. The examiner opined that the Veteran’s hearing loss impacts ordinary conditions of daily life, including ability to work. The report reveals that the Veteran described the impact in his own words as having trouble hearing and understanding others. The Veteran’s Maryland CNC Word List speech recognition score and Puretone thresholds, in decibels, were as follows: HERTZ     1000 2000 3000 4000 Avg CNC RIGHT 50 60 75 85 67.5 96% LEFT 55 55 75 85 67.5 92% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. However, the hearing thresholds reflect an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.85 Table VIA. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. As such, applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and in Table VIA, a Level V in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100. See 38 C.F.R. §§ 4.85, 4.86, DC 6100. Here, because the Veteran indicated that his claim would be partially satisfied with a 10 percent rating, and based on the evidence of record, a 10 percent rating from February 21, 2019, is warranted. The evidence does not indicate that an even higher rating is warranted based on the February 2019 VA examination results. However, whether an increased rating is warranted since the examination is addressed in the remand portion below. Accordingly, the medical evidence demonstrates that the Veteran’s bilateral hearing loss warrants a 10 percent rating from February 21, 2019. To this extent, the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for a lower back disability is remanded. The Veteran seeks service connection for a low back disability, which he claims is related to his military service. A March 1970 report of medical examination for induction reflects normal findings upon clinical evaluation of the spine at the time of his active duty enlistment. A September 1971 service treatment record (STR) reflects a note of hospitalization for pilonidal sinus, excised, healing well. A January 1973 STR note reflects that while on leave, the Veteran noticed the onset of an acute catch on his back on the left side after lifting groceries. The record notes that he then developed a rather acute backache, causing him to be unable to bend his back fully in several directions or sleep. The Veteran tried treating himself but then sought medical attention and was admitted for mechanical back syndrome. The examiner assessed the Veteran with mechanical back syndrome, lumbar strain. A June 1973 report of medical examination for separation reflects normal findings for the spine. VA medical center (VAMC) treatment records reflect that the Veteran reported chronic back pain in January 2011 and was seen by Dr. M. Tampoya shortly thereafter. The Veteran underwent a VA examination in February 2012. The examiner diagnosed the Veteran with degenerative joint disease of lumbosacral spine, spinal cord stenosis at the L4-L5. The examiner opined that the claimed disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that the Veteran has pilonidal cyst as a result of hereditary congenital defect in the skin of the lower spine in prenatal development. The examiner further explained that pilonidal cysts have no etiological role in spinal arthritis and is not causing the Veteran’s degenerative arthritis of the spine. The examiner concluded that the Veteran’s condition is secondary to work related injuries, as described in the Veteran’s history and Workman's Compensation records. A May 2020 private treatment record reflects a note indicating that the Veteran broke his back in 2018. At the December 2020 Board hearing, the Veteran testified, he experienced pilonidal cysts in basic training that were removed in service which caused a scar, and that he thinks the surgeries weakened his back. The Veteran also testified that he was a machinist in service, for which he did a lot of standing and bending. The Veteran testified that he continued to experience back pain after service, sought private treatment, required hospitalization sometime between 1988 and 1990, experienced work injures in 2007, first sought post service VA treatment in 2009 or 2010, at which time Dr. M.T., whom ordered the Veteran for an x-ray, indicated that his back condition may be related to service. Based on the foregoing medical evidence and in light of the Veteran’s lay statements, the Board finds that the February 2012 opinion is inadequate. Illustratively, the opinion does not provide a direct causation opinion that adequately considers the Veteran’s reports of back pain related to his in-service surgery, his military occupational specialty, or his in-service injury. The Board also notes that because the February 2012 examiner explained that the hereditary pilonidal cyst is separate and has no etiological role in spinal arthritis, and in light of there being no noted defect of a back disability on the Veteran’s enlistment examination, the Board finds that development as to aggravation of a preservice disability as to the Veteran’s back is not necessary. Thus, remand is warranted to obtain an adequate examination. 2. Entitlement to an increased rating in excess of 10 percent, since February 22, 2019, for bilateral sensorineural hearing loss is remanded. To the extent that the Veteran contends his hearing loss has worsened since the February 2019 VA examination, a remand is warranted to assess the current severity level of his service-connected bilateral hearing loss. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain VA and non-VA medical records related to the Veteran’s claims on appeal, to include any additional treatment records with VA Dr. M. Tampoya. 2. After the above development is complete, obtain an opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s back disability. The examiner should be provided the claims file. The examiner should state whether s/he has reviewed the file. The examiner should address the Veteran’s complaints and treatment of back pain and/or injury while in service and subsequent symptomatology, and lay statements. An in-person examination may be scheduled if the examiner deems it necessary or may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should opine: (a) Whether it is at least as likely as not (50 percent probability or more) that the diagnosed disability was caused by activities or incidents in service, to include the injury, surgery, and reported symptoms documented in the Veteran’s service treatment records. In providing the requested opinion, the examiner must consider and discuss the Veteran’s lay statements regarding the onset and progression of his disorder, as well as statements relating his back disorder to his military duties and as a related to the in-service surgery for a pilonidal cyst (but not the actual cyst itself). (b) If the Veteran’s back disorder is not found to be related to service, the examiner is asked to identify the likely etiology, if possible. The examiner is asked to consider and reconcile any conflicting medical evidence or opinions of record. The rationale for all opinions must be provided. (Continued on the next page) 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected hearing loss disability. Access to records in the Veteran’s electronic claims file should be made available to the examiner for review in connection with his or her opinion. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.