Citation Nr: 21008913 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-20 092A DATE: February 18, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss from October 4, 2011 to October 6, 2020, and a rating in excess of 10 percent thereafter is denied. REMANDED Entitlement to service connection for a skin condition, to include as secondary to herbicide exposure and/or various chemical exposures, is remanded. FINDING OF FACT Prior to October 7, 2020, the Veteran’s hearing impairment was no worse than Level II in the right ear and Level IV in the left ear; beginning October 7, 2020 the Veteran’s hearing impairment has been no worse than Level IV in the right ear and Level III in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss from October 4, 2011 to October 6, 2020, and a rating in excess of 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.385, 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.85, Diagnostic Code 6100, 4.86 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to January 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in December 2017. A transcript of the hearing is associated with the electronic claims file. The Board issued a prior remand in March 2018. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85(d). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Special provisions apply in instances of exceptional hearing loss. See 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(b). 1. Entitlement to a compensable rating for bilateral hearing loss from October 4, 2011 to October 6, 2020, and a rating in excess of 10 percent thereafter. In October 2011 the Veteran requested an increased rating for his service-connected bilateral hearing loss. He was given a VA examination for such in January 2013. The results of this audiological examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 25 45 70 70 LEFT X 20 60 70 70 Based on these results, the average puretone threshold was 53 decibels for the right ear and 55 decibels for the left ear. 38 C.F.R. § 4.85(d). Speech recognition was 90 percent in the right ear and 82 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level II Roman numeral designation for the right ear and a Level IV Roman numeral designation for the left ear. When the Level II and Level IV designations from the January 2013 examination are applied to Table VII, the result is a noncompensable rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. The Veteran appealed this issue to the Board and in March 2018 the Board remanded the claim in order to provide the Veteran with a more recent VA examination to determine the current severity of his bilateral hearing loss. The Veteran was given another VA examination for his bilateral hearing loss in October 2020. The results of this audiological examination were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 35 70 75 75 LEFT X 35 75 75 80 Based on these results, the average puretone threshold was 64 decibels for the right ear and 66 decibels for the left ear. 38 C.F.R. § 4.85(d). Speech recognition was 76 percent in the right ear and 86 percent in the left ear, as measured by the Maryland CNC test. Applying these values to Table VI, the result is a Level IV Roman numeral designation for the right ear and a Level III Roman numeral designation for the left ear. When the Level IV and Level III designations from the October 2020 examination are applied to Table VII, the result is a 10 percent rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. A review of the record shows no other relevant audiological examinations of the Veteran during the relevant time period. As a result of complaints that his hearing loss had become more severe, he was given another VA examination for such in October 2020. As indicated above, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. Here, the objective medical evidence of record consists of the January 2013 and October 2020 VA examinations, which indicate that the Veteran’s hearing loss did not warrant a compensable rating prior to October 7, 2020 but warranted a 10 percent rating beginning on that date. 38 C.F.R. § 4.85. Accordingly, entitlement to a compensable rating for bilateral hearing loss from October 4, 2011 to October 6, 2020, and a rating in excess of 10 percent thereafter is denied. REASONS FOR REMAND 1. Entitlement to service connection for a skin condition, to include as secondary to herbicide exposure and/or various chemical exposures, is remanded. In the March 2018 remand, the Board instructed to RO to schedule the Veteran for a VA examination to determine the nature and etiology of his skin condition. A review of the record shows that the RO obtained an opinion regarding the Veteran’s skin condition but did not provide him with an examination for such. Accordingly, another remand is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding remand by the Board confers on the claimant the right to compliance with the remand requests). The matters are REMANDED for the following action: 1. Update the electronic file with any new VA treatment records and private treatment records. 2. Undertake appropriate efforts to determine whether the Veteran was exposed to herbicides during his military service. 3. After the record has been updated, schedule the Veteran for a VA examination to determine the nature and etiology of his skin condition(s). The entire record should be reviewed by the examiner and note that such review was completed should be provided in the examiner’s report. The examiner should answer the following question: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current skin condition(s) is/are casually or etiologically related to his active service, to include possible herbicide exposure and/or other various chemical exposures from working as a mechanic?  A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge.  (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, Associate Attorney 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.