Citation Nr: 21008521 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 18-28 209A DATE: February 17, 2021 ORDER Entitlement to a 20 percent disability rating for service-connected bilateral hearing loss from May 17, 2018 is granted. REMANDED Entitlement to service connection for obstructive sleep apnea to include as secondary to service-connected disability is remanded. FINDING OF FACT Since May 17, 2018, the Veteran’s hearing acuity, at worst, reflected Level IV hearing in the right ear and Level VI hearing in the left ear. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for a 20 percent disability rating for service-connected bilateral hearing loss have been more nearly approximated throughout the appeal period. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.321, 4.85, 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1980 to July 1982. This case is before the Board of Veterans’ Appeals (Board) on appeal from Regional Office (RO) rating decisions dated in September 2017 and February 2018. In the September 2017 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective from January 12, 2016. The Veteran’s notice of disagreement (NOD) was received in August 2018. The RO issued a statement of the case (SOC) in October 2018. The Veteran’s VA Form 9, substantive appeal to the Board, was received in October 2018. During the pendency of the appeal, the RO issued a rating decision in July 2018 granting an increased rating for service-connected bilateral hearing loss to 10 percent, effective from May 17, 2018. In February 2020, the Board, in part, denied the claim. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC or Court). In a September 2020 Order, the Court vacated the portion of the Board’s February 2020 decision that denied an initial rating in excess of 10 percent for bilateral hearing loss from May 17, 2018 and remanded the matter pursuant to a September 2020 Joint Motion for Partial Remand (JMPR). In the February 2018 rating decision, the RO denied service connection for sleep apnea. The Veteran’s notice of disagreement (NOD) was received in July 2018. The RO issued a statement of the case (SOC) in January 2020. The Veteran’s VA Form 9, substantive appeal to the Board, was received in March 2020. With respect the Veteran’s increased hearing loss claim, additional, relevant VA treatment records and a September 2020 VA examination report were associated with the claims file after the March 2019 supplemental SOC. Although the AOJ did not consider these records in a new supplemental statement of the case, the additional, relevant VA treatment records and September 2020 VA examination were considered by the AOJ in a December 2020 rating decision. Thus, the AOJ considered the additional relevant evidence and as such, the Board finds no prejudice to the Veteran in the issuance of this decision. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss from May 17, 2018. The Veteran asserts that his bilateral hearing warrants a higher disability rating. He contends that because of his difficult hearing people, he has feelings of isolation and he gets anxious when having to engage in conversation with groups of people. See July 2019 correspondence. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated based on a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. If hearing loss is service-connected for only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). Tables VI and VII as set forth in section 4.85(h) are used to calculate the rating to be assigned. In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, 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. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Additionally, 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. 38 C.F.R. § 4.86(b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. Regarding the evidence of record, the Veteran was provided with a VA examination in June 2018. The June 2018 VA audiology examination report reveals that the Veteran reported that he has trouble hearing and people sound like they are jumbled up. He misunderstands others a lot. The Veteran stated he has to be facing them so he can understand. He noted that his hearing aids help, but he was still having problems. Speech recognition, using the Maryland CNC Word List, was 80 percent in the right ear and 64 percent in the left ear. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 45 50 34 LEFT 40 45 50 60 49 Applying the method for evaluating hearing loss to the results of the Veteran’s audiological evaluation reveals the exception requirements for hearing impairment under 38 C.F.R. § 4.86 do not apply. The examiner also did not certify that the use of speech discrimination test was not appropriate. Therefore, the numerical hearing impairment is determined only by Table VI. The Veteran’s hearing acuity in right ear is assigned to Level III according to Table VI and hearing acuity in the left ear is assigned to Level V. Combining Level III for the right ear and Level V for the left ear according to Table VII reveals a 10 percent disability rating. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran underwent another VA examination in September 2020. The January 2020 VA audiology examination report reveals that the Veteran reported that he cannot understand what people are saying. Speech recognition, using the Maryland CNC Word List, was 80 percent in the right ear and 60 percent in the left ear. On audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 35 60 65 50 LEFT 60 60 55 55 58 Applying the method for evaluating hearing loss to the results of the Veteran’s audiological evaluation reveals the exception requirements for hearing impairment under 38 C.F.R. § 4.86 do not apply for the right ear, but it does apply in the left ear. Specifically, the left ear demonstrated an exceptional patten of hearing impairment as the results show a pure tone threshold 55 dB or more at each of the four specified frequencies under 38 C.F.R. § 4.86(a). Thus, the Veteran’s hearing impairment for the left ear will be evaluated under either Table VI or Table VIa, whichever results in the higher numeral. The Veteran’s hearing acuity in right ear is ear is assigned to Level IV and hearing acuity in the left ear is assigned to Level VI according to Table VI. Combining Level IV hearing for the right ear and Level VI hearing for the left ear reveals a 20 percent rating under Table VII. The Veteran’s hearing acuity in the left ear is assigned to Level IV using Table VIa, resulting in lower numeral for the left ear. Combining Level IV hearing for the right ear and Level IV hearing for the left ear according to Table VII reveals a 10 percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. Accordingly, the September 2020 VA examination reveals that a 20 percent disability rating is warranted for the Veteran’s bilateral hearing loss disability. VA treatment records document that the Veteran underwent audiometry evaluations in June 2019 and June 2020. The VA treatment records document an assessment of the results of the June 2019 and June 2020 audiograms, but the records do not list the specific dB levels at each of the evaluated frequencies. In addition, the VA treatment records document the results of the speech discrimination tests; however, it is unclear if Maryland CNC list was used for such tests. An August 2020 VA treatment record also documents that the Veteran got his hearing aids from outside of VA. VA has a duty to return for clarification unclear or insufficient examination reports, even when they do not originate from VA medical personnel, particularly with regards to private audiological examinations. See Savage v. Shinseki, 24 Vet. App. 259 (2011). Nonetheless, the evidence suggests that the Veteran’s hearing loss has progressively become worse over time, and therefore, it is reasonable to infer that the June 2019 and June 2020 would not have shown any findings worse than the most recent examination conducted in September 2020. Furthermore, the September 2020 VA examination when compared to the June 2018 VA examination appears to be consistent with the findings in the June 2019 VA treatment record that indicates that his word recognition scores are worse and the June 2020 VA treatment record that documents there was a 10 to 15 dB shift at various frequencies compared to the 2019 audiogram with no significant change in word recognition scores. Accordingly, given the Board’s grant to a 20 percent disability rating throughout the relevant appeal period based in part on the VA treatment records that indicate an increase in bilateral hearing prior to the September 2020 VA examination, a remand to obtain clarification of these records will merely delay resolution of the case with unnecessary burdens placed on VA’s adjudication system with not much benefit flowing to the Veteran. Consequently, the above decision is warranted rather than a remand. Cf. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that “[a] veteran’s interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution”). The Board has considered the Veteran’s complaints regarding the impact of hearing loss on his daily life, but as noted above, the assignment of disability ratings for hearing impairment is primarily derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Lendenmann, 3 Vet. App. 345. The functional effects of hearing loss on his daily life activities and occupational functioning were discussed by the Veteran at his VA examinations. See 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The Veteran is noted to have reported that he has trouble hearing and people sound like they are jumbled up, he cannot understand what people are saying, and he has problems hearing even with his hearing aids, this is reflective of the types of functional difficulty that would be expected to be caused by his recorded levels of hearing loss. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (manifestations such as difficulty hearing speech are the types of difficulties contemplated by the schedular criteria for hearing loss.). Accordingly, the examinations of record are sufficiently in compliance with the provisions of VA regulations, and they are afforded great probative value in determining the Veteran’s level of hearing impairment. Under these circumstances, the evidence is at least evenly balanced that his current bilateral hearing loss more closely approximates a 20 percent disability rating from May 17, 2018. In this regard, the medical and lay evidence indicates that the Veteran’s hearing loss had become worse after the June 2018 VA examination and prior to the December 2020 VA examination. Thus, resolving any reasonable doubt in the Veteran’s favor, a 20 percent disability rating is warranted throughout the entire appeal period from May 17, 2018. REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea to include as secondary to service-connected disability. The Veteran contends that his current obstructive sleep apnea is related to active military service. In the alternative, he contends that it is caused by or aggravated by his service-connected tinnitus, unspecified anxiety disorder, and/or depressive disorder. The Veteran has not been provided with a VA examination. The evidence shows that the Veteran has a current diagnosis of obstructive sleep apnea. The Veteran submitted medical articles suggesting that there may be an association between obstructive sleep apnea and tinnitus, generally. See medical articles submitted in August 2018 and April 2020. He also submitted a medical article indicating a possible association between obstructive sleep apnea and anxiety and depression. See April 2020 medical article. Further, the claims file contains an article indicating that certain medications may aggravate obstructive sleep apnea. There is a “low threshold” when assessing the need for a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As the claims file contains evidence indicating that the Veteran’s current obstructive sleep apnea may be secondary to his service-connected disabilities, a remand is necessary to obtain a VA examination and medical opinion. The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA examination with respect to his service connection claim for sleep apnea. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion on the following: (a.) Whether the Veteran’s obstructive sleep apnea at least as likely as not (i.e., a 50 percent or greater probability) had its onset during service or is otherwise related to service. The examiner must provide an explanation for his or her medical opinion. As part of his or her rationale, the examiner is asked to address the lay statements as to the onset of symptoms of sleep apnea and the medical references submitted by the Veteran in support of the claim. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The medical specialist must not rely solely on the absence of treatment for sleep apnea in service as the basis for a negative opinion. Further, the examiner also may not dismiss the Veteran’s complaints of post-service symptoms solely because they are not documented in medical treatment records. (b.) If the answer to (a) is negative, whether the Veteran’s sleep apnea is at least as likely as not (i.e., a 50 percent or greater probability) caused by or aggravated by his service-connected disabilities to include tinnitus, unspecified anxiety disorder, and/or depressive disorder, as well as, any medication prescribed to treat his service-connected disabilities. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner must provide an explanation for his or her opinion. As part of his or her rationale, the examiner is asked to address the articles submitted by the Veteran, as well as, any other medical evidence and literature used in forming his or her opinion. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Berry, 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.