Citation Nr: 21011534 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-62 466 DATE: March 2, 2021 ORDER Entitlement to higher initial ratings for service-connected bilateral hearing loss, in excess of zero percent prior to September 13, 2018, 10 percent from September 13, 2018 to December 10, 2019, and 30 percent thereafter is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. Prior to September 13, 2018, the Veteran's bilateral hearing loss was productive of no worse than Level I hearing impairment in the right and left ears. 2. From September 13, 2018 to December 10, 2019, the Veteran’s bilateral hearing loss was productive of no worse than Level IV hearing impairment in the right and left ears. 3. From December 10, 2019, the Veteran’s bilateral hearing loss was productive of no worse than Level VII hearing impairment in the right ear and Level VI hearing impairment in the left ear. CONCLUSIONS OF LAW 1. Prior to September 13, 2018, the criteria for a compensable initial rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. 2. From September 13, 2018 to December 10, 2019, the criteria for an initial rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, DC 6100. 3. From December 10, 2019, the criteria for an initial rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to May 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for disabilities of the right and left knees, and neck. The rating decision also granted service connection for bilateral hearing loss and assigned a noncompensable (zero percent) evaluation. The Veteran filed a notice of disagreement (NOD) in April 2016 and a statement of the case (SOC) was issued in October 2017. He subsequently perfected a timely appeal. In June 2019, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. In an October 2019 Board decision, the claims were remanded for further evidentiary development. A supplemental statement of the case (SSOC) was issued in July 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. The Board notes that during the course of this appeal, in an October 2018 rating decision, the RO increased the assigned initial rating for service-connected bilateral hearing loss to 10 percent from September 13, 2018. Additionally, in a July 2020 rating decision, the RO increased the assigned initial rating to 30 percent from December 10, 2019. The Veteran has not expressed satisfaction with the higher initial ratings; this matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). 1. Entitlement to higher initial ratings for service-connected bilateral hearing loss, in excess of zero percent prior to September 13, 2018, 10 percent from September 13, 2018 to December 10, 2019, and 30 percent thereafter. As indicated above, the Veteran’s service-connected bilateral hearing loss is assigned a noncompensable initial rating from July 29, 2014 to September 13, 2018, a 10 percent rating from September 13, 2018 to December 10, 2019, and a 30 percent rating thereafter. The Veteran asserts entitlement to higher initial ratings from the date of service connection. See the notice of disagreement (NOD) dated April 2016 and the VA Form 9 dated November 2017. As will be explained below, the resolution of this issue involves determining the levels of hearing acuity. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In cases where impaired hearing is service-connected in 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, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below, and are 70 decibels or more at 2000 Hz. See 38 C.F.R. § 4.86. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 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. Separate diagnostic codes identify the various disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. If two disability ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. 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). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also 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 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). The Board has considered all evidence of record as it bears on the issue before it. See 38 U.S.C. § 7104(a) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record”); 38 U.S.C. § 5107(b) (“Secretary shall consider all information and lay and medical evidence of record in a case”). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, 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, as to the Veteran’s appeal. a. Prior to September 13, 2018. The Veteran filed a claim of entitlement to service connection for bilateral hearing loss in July 2014. The Veteran was afforded a VA audiology examination in November 2015 at which time the examiner noted the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 30 25 45 35 34 LEFT 25 35 45 45 38 Average pure tone threshold was 34 decibels in the right ear with speech recognition ability of 100 percent. Average pure tone threshold was 38 decibels in the left ear with speech recognition ability of 100 percent. The examiner stated that the Veteran’s bilateral hearing loss does impact the ordinary conditions of his daily life, including his ability to work; specifically, “[h]e must ask people to repeat in order to understand.” Such examination findings translate to level I hearing in the right ear and level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable (zero percent) rating. VA treatment records dated in October 2017 document the Veteran’s difficulty hearing conversational speech, especially in the presence of competing sounds. He was prescribed hearing aids. See the VA treatment records dated December 2017. Accordingly, audiometric testing conducted for VA compensation purposes indicates that a compensable rating is not warranted prior to September 13, 2018. Critically, there is no probative audiological evidence of record to support a compensable rating for the Veteran’s bilateral hearing loss disability prior to September 13, 2018. The preponderance of the evidence is against the Veteran’s claim for a higher initial rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. b. From September 13, 2018 to December 10, 2019. A September 2018 VA audiology examination documented the pure tone thresholds indicated below: HERTZ 1000 2000 3000 4000 Average RIGHT 50 40 60 55 51 LEFT 50 50 60 65 56 Average pure tone threshold was 51 decibels in the right ear with speech recognition ability of 80 percent. Average pure tone threshold was 56 decibels in the left ear with speech recognition ability of 80 percent. The examiner stated that the Veteran’s bilateral hearing loss does impact his ordinary conditions of daily life including his ability to work. The Veteran reported, “I actually have to look at the face in order to hear. I was released from work because I can’t hear. Someone sitting behind me, I won’t be able to understand. It sounds muffled on the phone.” Such examination findings translate to level IV hearing in the right ear and level IV hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a 10 percent rating. VA treatment records dated in March 2019 noted that the Veteran reported a subjective decrease in hearing sensitivity. The treatment provider noted a slight decrease in hearing sensitivity was noted; however, congestion may have influenced his results. In an April 2019 statement, the Veteran reported that he retired at an early age because of disabilities, “the ringing in my ears and the lack of hearing didn’t help.” Accordingly, the Board finds that there is no probative audiological evidence of record to support a rating for the Veteran’s bilateral hearing loss disability in excess of 10 percent from September 13, 2018 to December 10, 2019. The preponderance of the evidence is against the Veteran’s claim for a higher initial rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, at 55. c. From December 10, 2019. As indicated above, in a July 2020 rating decision, the RO assigned a 30 percent rating from December 10, 2019. The Board has therefore considered whether a rating in excess of 30 percent is warranted from December 10, 2019. The Veteran was most recently afforded a VA examination in December 2019 at which time the examiner documented the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 65 70 85 95 79 LEFT 55 65 85 95 75 The average pure tone threshold was 79 decibels in the right ear with speech recognition ability of 80 percent. The average pure tone threshold was 75 decibels in the left ear with speech recognition ability of 80 percent. The examiner stated that the Veteran’s bilateral hearing loss impacts his ordinary conditions of daily life including his ability to work; specifically, the Veteran “must ask others to repeat to understand.” These examination findings translate to level V hearing in the right ear and level V hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a 20 percent rating. However, because the Veteran’s hearing loss represents an exceptional pattern of hearing loss in both ears as defined by 38 C.F.R. § 4.86(a), Table VIa may be used if it reflects a higher level of hearing loss. The Board notes that, pursuant to Table VIa, the findings translate to level VII hearing in the right ear and VI hearing in the left ear. Applying Table VII, DC 6100, this equates to a 30 percent rating, but no higher. The Veteran’s VA treatment records for the period dating from December 10, 2019 document an on-going diagnosis of impaired hearing. However, there are no additional audiological results documented during this period. Critically, there is no probative audiology evidence of record to support a rating in excess of 30 percent for the Veteran’s bilateral hearing loss disability for the period dating from December 10, 2019. The preponderance of the evidence is against the Veteran’s claim for a higher initial rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. d. Other considerations During all periods on appeal, the Board in no way discounts the difficulties that the Veteran experiences as a result of his service-connected bilateral hearing loss disability. In this regard, it must be emphasized that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent and valid audiology studies. See Lendenmann, 3. Vet. App. at 345. In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of higher initial ratings. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the Veteran’s bilateral hearing loss disability. His hearing loss is manifested by decreased hearing acuity. A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology, including his difficulty hearing and understanding speech. The Board notes that this conclusion is consistent with the Court’s holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (“[W]hen a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria”). The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss, such as dizziness, vertigo, or ear pain, not contemplated by the rating criteria. Because the rating criteria reasonably describe the claimant’s disability level and symptomatology, the Veteran’s disability picture is contemplated by the Rating Schedule, such that the assigned schedular noncompensable evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence does not show anything unique or unusual about the Veteran’s bilateral hearing loss that would render the schedular criteria inadequate. The Board recognizes that the Veteran has repeatedly contended that his bilateral hearing loss significantly affects his ability to work. The Board has therefore considered the applicability of a total rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this regard, the Board recognizes that, in the September 2018 VA examination report, the examiner noted the Veteran’s statement that he was released from work because he couldn’t hear. Additionally, in an April 2019 statement, the Veteran reported that he had to retire at an early age due, in part, to his bilateral hearing loss. However, the Veteran’s records from the Social Security Administration (SSA) document his report that he is unable to work due to his depressive symptoms, as well as his neck and bilateral knee pain. Moreover, the medical evidence of record does not suggest that he is unable to obtain or maintain any type of substantially gainful employment consistent with his education and employment history due solely to bilateral hearing loss and tinnitus disabilities, which are his only service-connected disabilities. Although the November 2015, September 2018, and December 2019 VA examiners reported that the Veteran’s bilateral hearing loss does impact his ability to work, no medical professional has suggested that the Veteran is unable to obtain or maintain gainful employment due solely to his service-connected bilateral hearing loss. The Board finds that the VA medical opinions are consistent with the other clinical evidence of record. The Board therefore finds that the overall record does not show that the Veteran is unable to obtain or maintain substantially gainful employment due to his service-connected bilateral hearing loss. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008); Rice, 22 Vet. App. At 453-54. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. The Veteran asserts entitlement to service connection for disabilities of the neck, as well as right and left knees, which he contends were incurred during his active military service. Specifically, he indicated that he hurt his neck jumping out of a helicopter. See the Board hearing transcript, pg. 3. He reported that he injured his knees as a result of the wear and tear from physical fitness in the military. Id. at pg. 5. With respect to current diagnosis, VA treatment records document diagnoses of degenerative disc disease (DDD) of the cervical spine and degenerative joint disease (DJD) of the bilateral knees. See the VA treatment records dated February 2014 and July 2014. As to in-service injury, the Veteran’s service treatment records (STRs) do not document any complaints of or treatment for neck or knee pain. However, he is competent to report describe his injuries and report observable symptoms such as joint pain. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007). Moreover, the Veteran recently submitted an August 2020 lay statement from Mr. H.T., in support of his claims. In the statement, Mr. H.T. reports that he met the Veteran at Fort Hood in late 1975 and served with him through early 1979. See the statement of Mr. H.T. dated August 2020. He indicated that he noticed that the Veteran experienced neck and knee pain during their service together. Id. At the June 2019 Board hearing, the Veteran offered testimony concerning neck and bilateral knee symptomatology dating from his active duty service. The Veteran has not been afforded a VA medical opinion with respect to claims of entitlement to service connection for disabilities of the neck and bilateral knees. As such, the Board finds that this matter must be remanded in order to afford the Veteran a VA examination as to the etiology of the claimed disabilities. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). The matters are REMANDED for the following action: The AOJ shall refer the VA claims file to a clinician with appropriate expertise to provide an opinion as to the claimed neck and bilateral knee disabilities. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. If the clinician determines that an examination is necessary, one should be scheduled. Then, the clinician should respond to the following: (a). With respect to any diagnosed neck and knee disability, the examiner should render an opinion, with supporting rationale, addressing whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is otherwise medically related to in-service injury or disease. (b). In providing the opinion and rationale, the clinician should consider the relevant evidence of record, particularly (1) the Veteran’s service treatment records; (2) the post-service VA treatment records documenting the Veteran’s diagnoses of DDD of the cervical spine and bilateral knee DJD, referenced above; (3) the Veteran’s June 2019 Board hearing testimony concerning the onset and continuity of his neck and knee symptoms; and (4) the August 2020 statement of Mr. H.T., referenced above. (c). If there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disabilities are known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? (Continued on the next page)   In this regard, the clinician should note that the absence of evidence of treatment for the claimed disabilities in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. All examination findings/testing results (if any), along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.