Citation Nr: 21008993 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 11-19 244 DATE: February 18, 2021 ORDER Entitlement to a disability rating of 20 percent, but no higher, for service-connected bilateral hearing loss prior to January 25, 2016 is granted. Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss from January 25, 2016 to June 4, 2019 is denied. Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss from June 4, 2019 is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected bilateral chronic plantar keratosis is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, prior to January 25, 2016, the Veteran’s bilateral hearing loss was manifested in hearing acuity of no worse than Level V in the right ear and no worse than Level V in the left ear. 2. From January 25, 2016 to June 4, 2019, the Veteran’s bilateral hearing loss was manifested in hearing acuity of no worse than Level III in the right ear and no worse than Level III in the left ear. 3. From June 4, 2019, the Veteran’s bilateral hearing loss was manifested in hearing acuity of no worse than Level III in the right ear and no worse than Level II in the left ear. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for entitlement to a compensable disability rating for service-connected bilateral hearing loss prior to January 25, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss from January 25, 2016 to June 4, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.86, Diagnostic Code 6100. 3. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss from June 4, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1971 to March 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2008 and October 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs). In February 2017, the Veteran testified at a hearing via live videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s claims file. These matters were previously before the Board in April 2018, at which time the Board remanded the claims to the agency of original jurisdiction (AOJ) for further development. With respect to the Veteran’s claims for entitlement to increased disability ratings for his service-connected bilateral hearing loss throughout the period on appeal, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (see also Donnellan v. Shinseki, 24 Vet. App. 167, 176 (stating that substantial compliance, rather than strict compliance, is required)). However, for the reasons provided below, the Board finds that the AOJ did not substantially comply with the remand directives concerning the Veteran’s claim for entitlement to a disability rating in excess of 10 percent for his service-connected bilateral chronic plantar keratosis; and, accordingly, another remand is necessary. The Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate; and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran’s claims. Increased Disability Ratings for Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and 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 VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. at 119, 126-27 (1999). In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (depicted in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent 9 categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86, 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 Level designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86. Further, when the pure tone threshold is 30 decibels at 1000 Hertz and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Level 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 Level. 38 C.F.R. § 4.86(b). Each ear is considered separately. 38 C.F.R. § 4.86. The use of Table VIA is also appropriate when an examiner certifies that use of a speech discrimination test is not appropriate. 38 C.F.R. § 4.85. Initially, the Board notes that for all periods on appeal discussed below, the Veteran’s lay testimony has been considered as to symptomatology, including that he has difficulty hearing people and that he needs to adjust the volume of his television. However, the Board finds that such symptomatology is contemplated by application of the rating criteria discussed in more detail below. 1. Entitlement to a compensable disability rating for service-connected bilateral hearing loss prior to January 25, 2016 The Veteran contends that, prior to January 25, 2016, his bilateral hearing loss warrants a compensable disability rating. By way of background, the Veteran was granted service connection for bilateral hearing loss in a December 1993 rating decision, which assigned a noncompensable disability rating. In correspondence with VA dated May 21, 2015, the Veteran requested a higher disability rating for his bilateral hearing loss, asserting that the severity of his hearing loss had increased since the assignment of the initial, noncompensable disability rating. Thus, the Board’s analysis of the record will focus on evidence received one year prior to the date on which the Veteran submitted his request for an increased disability rating – that is, May 21, 2014 – to the present. (See, e.g., 38 U.S.C. § 5110, 38 C.F.R. § 3.400(o) (stating that the effective date of an award for a claim for an increased disability rating is the earliest date on which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose.)) The record reflects, in pertinent part, that the Veteran furnished the results of May 2015 audiological testing performed by a private clinician. See medical records dated May 4, 2015. When converted from plotted points, the Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 55 65 65 65 LEFT 40 60 65 70 65 The right ear demonstrated an average puretone threshold of 62.5 decibels for the frequencies of 1000 to 4000 Hertz, whereas the left ear demonstrated an average puretone threshold of 65 decibels for those frequencies. Speech audiometry testing indicated a speech recognition ability of 68 percent for the right ear and 68 percent for the left ear. A mechanical application of the puretone threshold averages and speech discrimination percentage for each ear indicates hearing acuity of Level V for the right ear and Level V for the left ear, resulting in a disability evaluation of 20 percent. The Veteran was afforded a VA examination for his bilateral hearing loss in July 2015. See VA examination dated July 30, 2015. In pertinent part, audiometric testing revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 50 60 60 LEFT 40 50 60 65 60 The right ear demonstrated an average puretone threshold of 55 decibels for the frequencies of 1000 to 4000 Hertz, whereas the left ear demonstrated an average puretone threshold of 59 decibels for the frequencies of 1000 to 4000 Hertz. Speech audiometry testing indicated a speech recognition ability of 96 percent for the right ear and 84 percent for the left ear. The Veteran reported that the functional impact of the disability included difficulty hearing people speaking to him. A mechanical application of the puretone threshold averages and speech discrimination percentage for each ear indicates hearing acuity of Level I for the right ear and Level III for the left ear. The Board finds that, for the period prior to January 25, 2016, the results of the May 2015 audiological testing raises the competent medical evidence to the level of equipoise; and as such, resolving reasonable doubt in the Veteran’s favor, the severity of the Veteran’s service-connected bilateral hearing loss warrants a disability rating of 20 percent for the applicable period. 2. Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss from January 25, 2016 to June 4, 2019 The Veteran asserts that, from January 25, 2016 to June 4, 2019, the severity of his bilateral hearing loss warrants a disability rating in excess of 10 percent. The record reflects that the Veteran underwent another VA hearing loss examination in January 2016. See VA examination dated January 25, 2016. Audiometric testing revealed, in pertinent part, puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 55 55 65 65 LEFT 40 55 60 65 60 The right ear demonstrated an average puretone threshold of 60 decibels for the above frequencies, whereas the left ear demonstrated an average puretone threshold of 60 decibels for the above frequencies. Speech audiometry testing indicated a speech recognition ability of 90 percent for the right ear and 84 percent for the left ear. The Veteran reported that the functional impact of the disability included having difficulty hearing people speaking to him and requiring others to repeat themselves, as well as having to turn the volume up on the television. A mechanical application of the puretone threshold averages and speech discrimination percentage for each ear indicates hearing acuity of Level III for the right ear and Level III for the left ear, resulting in a noncompensable disability rating. Additionally, the January 2016 audiological testing results do not meet the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86, as the evaluation at each of the four specified frequencies is not 55 decibels or more. Thus, the preponderance of the evidence of record is against finding that, for the period on appeal, the Veteran’s bilateral hearing loss warrants a disability rating in excess of 10 percent. Accordingly, the claim must be denied. 3. Entitlement to a disability rating in excess of 10 percent for service-connected bilateral hearing loss from June 4, 2019 The Veteran maintains that, from June 4, 2019, his bilateral hearing loss warrants a disability rating in excess of 10 percent. Pursuant to the Board’s prior remand, the Veteran was provided another VA audiological examination in June 2019. See VA examination dated June 4, 2019. In pertinent part, audiometric testing revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 55 60 65 65 LEFT 45 60 65 70 65 The right ear demonstrated an average puretone threshold of 61.25 decibels for the above frequencies, whereas the left ear demonstrated an average puretone threshold of 65 decibels for the above frequencies. Speech audiometry testing indicated a speech recognition ability of 88 percent for the right ear and 92 percent for the left ear. The Veteran reported that the disability resulted in functional impairment marked by difficulty hearing others speak to him and difficulty communicating effectively at work. A mechanical application of the puretone threshold averages and speech discrimination percentage for each ear indicates hearing acuity of Level III for the right ear and Level II for the left ear, resulting in a noncompensable disability rating. Finally, the June 2019 audiological testing results do not satisfy the criteria for exceptional patterns of hearing impairment under 38 C.F.R. § 4.86, as the evaluation at each of the four specified frequencies is not 55 decibels or more. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits….”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA… the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for service-connected bilateral chronic plantar keratosis is remanded. Although it sincerely regrets the additional delay, the Board finds that another remand is necessary in this case before the Veteran’s appeal for entitlement to a disability rating in excess of 10 percent for bilateral chronic plantar keratosis can be properly adjudicated on its merits. Pursuant to the Board’s April 2018 remand, the AOJ offered the Veteran a new VA examination to determine the current severity of his bilateral chronic plantar keratosis. See VA examination dated September 18, 2019. However, the clinician did not provide the information necessary to evaluate the severity of the Veteran’s foot disability under the appropriate rating criteria, per the Board’s remand directives. Specifically, the examiner failed to document whether the condition of each of the Veteran’s feet is pronounced, severe, moderate, or mild. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with its April 2018 remand directives. Therefore, another remand is required in order to afford the Veteran another opportunity to undergo a VA examination to properly document the severity of his bilateral chronic plantar keratosis under the appropriate rating criteria. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate physician (employing telemedicine techniques and other alternatives to an in-person examination, if possible) to ascertain the current severity of his service-connected bilateral chronic plantar keratosis. The Veteran’s claims file, including a copy of this remand, must be made available to and reviewed by the examiner. All necessary tests and studies should be undertaken, and all clinical findings should be reported in detail. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 2. After completing the above, and any other development that may be deemed appropriate, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a Supplemental Statement of the Case and given the opportunity to respond. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.