Citation Nr: 21013007 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-61 514 DATE: March 8, 2021 ORDER Entitlement to an initial compensable rating for right ear hearing loss is denied. REMANDED Entitlement to a rating in excess of 30 percent for renal cell carcinoma, status post left partial nephrectomy with hypertension prior to August 27, 2013, and a ratting in excess of 80 percent since is remanded. Entitlement to a rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to a rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to a rating in excess of 10 percent for a left shoulder disability is remanded. Entitlement to a rating in excess of 10 percent for a left thumb disability is remanded. Entitlement to an initial rating in excess of 30 percent for irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. Entitlement to an initial rating in excess of 10 percent for a scar, status post left partial nephrectomy is remanded. Entitlement to service connection for a left wrist disorder is remanded. Entitlement to special monthly compensation (SMC) is remanded. FINDING OF FACT 1. The Veteran has demonstrated no worse than Level IV hearing in the right ear. CONCLUSION OF LAW 1. The criteria for an initial compensable rating for the Veteran’s right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to June 1998. In March 2020, the Veteran presented testimony before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. As an initial matter, the Board notes there are several procedural issues that must be addressed. In a November 1998 rating decision, the RO granted service connection for hypertension with early renal dysfunction, degenerative joint disease of the bilateral ankles, and degenerative joint disease of the left shoulder and 1st metacarpophalangeal (joint) left thumb, all effective from July 1, 1998. Thereafter, in December 2002, the Veteran filed for increased ratings for these disabilities. See December 2002 Statement in Support of Claim. A March 2003 rating decision awarded separating ratings of 10 percent for the left and right ankle, effective from July 1, 1998, on the basis of clear and unmistakable error. Separate 10 percent ratings were also assigned for the left shoulder and left thumb disabilities, effective from December 9, 2002. This same rating decision granted service connection for renal cell carcinoma status post left partial nephrectomy with hypertension, and awarded a 100 percent rating from October 1, 2002, and a 30 percent rating from April 1, 2003. A rating of 0 percent was assigned for the associated left partial nephrectomy scar. However, service connection for a wrist disorder and entitlement to SMC were denied. The Veteran was notified by a VA letter dated in April 2003. In July 2003, the Veteran filed a notice of disagreement indicating that he disagreed with “all adjudicative determinations” in the April 2003 notification letter. He also specifically stated that he believed he was entitled to a minimum rating of 10 percent for the scar disability. A July 2003 rating decision increased the Veteran’s rating for the scar to 10 percent and indicated it was a complete grant of the benefits sought. However, since that grant did not constitute a full grant of the benefits sought on appeal, the claim for increase is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Further, no further actions were taken with respect to any of the issues addressed in the March 2003 rating decision until the RO determined the Veteran filed claims for increased rating for the renal cancer, left and right ankles, left thumb, and left shoulder disabilities in August 2013 on his VA Form 21-8940. Therefore, the Board finds that, with respect to the left ankle, right ankle, left thumb, left shoulder, and renal cell carcinoma ratings, these issues are on appeal from the March 2003 rating decision. In August 2010, the Veteran then filed claims for hearing loss and IBS with GERD. Entitlement to a noncompensable rating for right ear hearing loss was granted in a January 2012 rating decision. Entitlement to an initial rating of 30 percent for IBS with GERD was granted in a March 2012 rating decision. The Veteran then filed timely notice of disagreements with these rating decisions and eventually perfected his appeals to the Board with respect to these issues. Thereafter, in August 2013, the Veteran filed a VA Form 21-8940, seeking entitlement to a TDIU. However, as the Board finds that the July 2003 statement was a timely unadjudicated notice of disagreement to the March 2003 rating decision, the TDIU claim on appeal arises from the December 10, 2002 claim for increased ratings for the underlying disabilities. See Harper v. Wilkie, 30 Vet. App. 356, 359 (2018). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, 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. 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. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008) 1. Right Ear Hearing Loss The Veteran is currently assigned a noncompensable (i.e. 0 percent) rating for right ear hearing loss. By way of history, he was awarded service connection for this disability in a January 2012 rating decision. The Veteran filed a notice of disagreement with the initial rating assigned and prefect this appeal to the Board. Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from Level I for essentially normal acuity to Level XI for profound deafness. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. In the present case, the Board notes that the Veteran has been granted service connection for only one ear, his right ear. If impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85 (f). After reviewing the evidence of record the Board finds that a compensable rating for right ear hearing loss is not warranted. 38 C.F.R. § 4.85, Diagnostic Code 6100. The December 2010 VA Audiological examination found the Veteran’s pure tone thresholds for the right ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 60 55 45 The average puretone threshold reading for the right ear was 50 decibels. Speech audiometry revealed speech recognition ability of 80 percent in the right ear. The audiometric thresholds do not meet the exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Therefore, the Veteran’s audio threshold and speech recognition scores will be applied only to Table VI. Applying the values of the audiological examinations to the rating criteria results in a numeric designation no greater than Level IV in the right ear. See 38 C.F.R. § 4.85, Table VI. Application of this level of hearing impairment to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating, with the left ear assigned as Level I hearing impairment. As for any functional effect of his hearing loss on activities of daily living, the Veteran reported he often has to read lips to understand want is being said. The Veteran was next examined by VA in April 2014. During the April 2014 VA Hearing Loss and Tinnitus DBQ, the Veteran’s pure tone thresholds for the right ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 30 35 50 The average puretone threshold reading for the right ear was 35 decibels. Speech audiometry revealed speech recognition ability of 72 percent in the right ear. The audiometric thresholds do not meet the exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Therefore, the Veteran’s audio threshold and speech recognition scores will be applied only to Table VI. Applying the values of the audiological examinations to the rating criteria results in a numeric designation no greater than Level IV in the right ear. See 38 C.F.R. § 4.85, Table VI. Application of this level of hearing impairment to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating, with the left ear assigned as Level I hearing impairment. As for any functional effect of his hearing loss on activities of daily living, the Veteran reported he has to really listen out of his left since he cannot hear much out of the right. The VA examiner further commented that the Veteran's right ear hearing loss results in difficulty hearing conversation at a distance; difficulty understanding speech in noisy settings; misunderstanding verbal instructions; difficulty hearing TV or radio at a normal volume; difficulty hearing conversation over the phone; difficulty hearing warning signals, such as smoke alarms or police sirens; embarrassment when asking others to repeat what they have said; social isolation; and, difficulty hearing conversation if the speaker is not facing him. The Veteran was most recently examined by VA in June 2017. During the June 2017 VA Hearing Loss and Tinnitus DBQ, the Veteran’s pure tone thresholds for the right ear, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 30 45 35 The average puretone threshold reading for the right ear was 34 decibels. Speech audiometry revealed speech recognition ability of 92 percent in the right ear. The audiometric thresholds do not meet the exceptional pattern of hearing impairment under 38 C.F.R. § 4.86. Therefore, the Veteran’s audio threshold and speech recognition scores will be applied only to Table VI. Applying the values of the audiological examinations to the rating criteria results in a numeric designation no greater than Level I in the right ear. See 38 C.F.R. § 4.85, Table VI. Application of this level of hearing impairment to Table VII at 38 C.F.R. § 4.85 produces a noncompensable rating, with the left ear assigned as Level I hearing impairment. As for any functional effect of his hearing loss on activities of daily living, the Veteran reported he misses a lot of what is said to him, even when using a hearing aid. He also stated he uses his speakerphone. The Board has also reviewed the available VA and private treatment records, which do not include any additional audiometric findings or complaints reporting a decrease in hearing acuity. The VA and private treatment records in the claim file do note the Veteran’s use of a hearing aid (see January 2012 VA Treatment Record) and other impairments pertaining to the right ear, such as drainage and debris (see March 2012 Private Treatment Record). Further, the Veteran submitted a May 2020 medical opinion from Dr. G.S. regarding the impact of the Veteran’s service connected disabilities on his employability. Dr. G.S. noted these other impairments of the right ear, for which the Veteran is in receipt of service connection, in his opinion, but there were no audiometric findings in this May 2020 opinion. In fact, Dr. G.S. acknowledged an examination of the Veteran was not conducted. The Veteran has repeatedly referenced his ongoing right ear disorders, including his prior tempanomastoidectomies. See May 2012 Notice of Disagreement; see also April 2014 Statement in Support of Claim; see also January 2015 VA Form 9. Additionally, during the March 2020 Board hearing, the Veteran reported that he was experiencing vertigo and drainage due to holes in his eardrum. He stated a doctor told him that his vertigo is associated with his hearing loss, however, none of the VA examiners or the associated treatment records include such a finding. Further, the Board notes that the Veteran is already in receipt of service connection for an additional disability pertaining to his right ear under Diagnostic Code 6299-6211, diagnosed as status post multiple tympanomastoidectomies of the right ear for recurrent cholesteatoma. Moreover, he did not testify that he believes his hearing is worse as a result of vertigo or drainage, but that he believes these conditions are caused by his hearing loss. Based on the Veteran’s testimony, the Board encourages the Veteran to file for service connection for any additional disabilities he believes may be caused or aggravated by his right ear hearing loss, or an increased rating for his service connected status post multiple tympanomastoidectomies of the right ear for recurrent cholesteatoma. Based on the findings of the audiometric findings contained in the VA examinations above, the Board finds that the Veteran is not entitled to a compensable rating as his hearing has been noted to be, at worst, Level IV. See December 2011 and April 2014 VA Examinations. The Board acknowledges the Veteran’s complaints regarding the functional impact of his hearing loss on his daily life, such as problems hearing and needing to read lips. As noted above, the assignment of the disability rating for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Furthermore, the Court held that “the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment” which “are precisely the effects that VA’s audiometric tests are designed to measure’’ and that “when 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.” See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Board finds that the VA examinations are the most probative evidence regarding the severity of the Veteran’s right ear hearing loss disability. Notably, the VA examinations were performed by a state-licensed audiologist, and included the controlled speech discrimination test using the Maryland CNC test. The Board does not discount the difficulties the Veteran has with his auditory acuity. However, the Board must base its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Accordingly, the Board finds the Veteran is not entitled to a compensable rating at any point during the appeals period. In reaching the above conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b) (West 2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  REASONS FOR REMAND 1. Residuals of Renal Cell Carcinoma The Veteran is seeking ratings higher than 30 percent prior to August 27, 2013, and higher than 80 percent since, for residuals of his kidney cancer with hypertension. Here, the Board notes the Veteran was last examined by VA in April 2014 concerning the severity of this disability and all associated residuals. Since that time, the Veteran has continued to receive regular treatment for his residuals of renal cell carcinoma, to include hypertension and now erectile dysfunction. See VA Treatment Records; see also May 2020 Statement from Dr. S.O. noting ongoing VA treatment. Moreover, the Veteran testified that he experiences increase in fluid to his feet due to renal dysfunction. See March 2020 Hearing Transcript. Thus, the Board finds that a new VA examination is needed to ascertain the current severity and manifestations of this service-connected disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Right Ankle, Left Ankle, Left Shoulder, Left Thumb Disabilities The Veteran is seeking ratings in excess of 10 percent for each the right ankle, left ankle, left shoulder, and left thumb disabilities. During his March 2020 Board hearing, the Veteran testified that for each disability he suffers from pain and limitation of motion. As for the left and right ankles, he reported instability. Concerning the left shoulder, he described a radiating pain and the inability to lift his left arm overhead. Further, for all disabilities he explained that he now has gout, which he testified that he has been told it is the progression of his degenerative arthritis. To date, however, no VA examiner has provided an opinion as to whether the Veteran has degenerative arthritis, gouty arthritis, or some combination of the two and whether the symptoms may be differentiated. Therefore, for the reasons noted above, the Board finds that a new VA examination is needed to ascertain the current severity and manifestations of these service-connected disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown,6 Vet. App. 377 (1994). 3. IBS with GERD The Board is seeking entitlement to an initial rating in excess of 30 percent for his service connected IBS with GERD. During the March 2020 Board hearing, the Veteran testified that he has lost significant weight recently, which he attributes to his IBS with GERD. See March 2020 Board Hearing Transcript. He also stated that he has been vomiting more frequently. Id. Therefore, based on the Veteran’s statements as to the increase in severity of his IBS with GERD, the Board finds that a new VA examination is needed to ascertain the current severity and manifestations of this service connected disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 4. TDIU The Veteran has consistently maintained that he is unable to work due to his service-connected disabilities, thereby making his claim for entitlement TDIU part and parcel of the increased rating claims on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As the issue of TDIU is inextricably intertwined with the increased rating claims on appeal, it must also be remanded. 5. Left Wrist Disorder and Entitlement To SMC Regarding the issues of entitlement to service connection for a left wrist disorder, scar, and entitlement to SMC, the Veteran submitted a timely notice of disagreement in July 2003 with the March 2003 rating decision, but a statement of the case with respect to these issues has not been issued. A remand is required for the Agency of Original Jurisdiction (AOJ) to issue a statement of the case as to these three issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). 6. Scar, Status Post Left Partial Nephrectomy The Veteran is presently in receipt of a 10 percent rating for the scar associated with left partial nephrectomy. The Board acknowledges that the RO has not yet issued him a statement of the case in response to his July 2003 notice of disagreement regarding this disability. A remand is required for the Agency of Original Jurisdiction (AOJ) to issue a statement of the case as to these three issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Associate with the file all VA and private treatment for the Veteran dated from April 2020 to the present that have not previously been obtained. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestation of his service-connected renal cell carcinoma, with hypertension and erectile dysfunction. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. (a) The examiner is asked to comment on whether any of the manifestations of the service-connected residuals of renal cell carcinoma impacts the Veteran’s employability. i. In so commenting, the examiner should take into account the Veteran’s education and work history, but may NOT consider the Veteran’s age or any impairment caused by nonservice-connected disabilities. • The examiner is instructed to review all pertinent records associated with the claims file. • It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. • A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. Schedule the Veteran for VA examination(s) to ascertain the severity and manifestation of his service-connected left ankle, right ankle, left shoulder, and left thumb disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. (a) The examiner(s) must specifically comment on whether the Veteran has gout and, if so, whether: i. Gout is a progression of degenerative arthritis; or, ii. Whether the symptomatology of gout is distinguishable from degenerative arthritis (b) The examiner is asked to comment on whether any of the manifestations of the Veteran’s service-connected left ankle, right ankle, left shoulder, and left thumb disabilities impact the Veteran’s employability. i. In so commenting, the examiner should take into account the Veteran’s education and work history, but may NOT consider the Veteran’s age or any impairment caused by nonservice-connected disabilities. • The examiner is instructed to review all pertinent records associated with the claims file. • It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. • A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. Schedule a VA examination to ascertain the severity and manifestation of his service-connected IBS with GERD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. (a) The examiner is asked to comment on whether any of the manifestations of the service-connected IBS with GERD impacts the Veteran’s employability. i. In so commenting, the examiner should take into account the Veteran’s education and work history, but may NOT consider the Veteran’s age or any impairment caused by nonservice-connected disabilities. • The examiner is instructed to review all pertinent records associated with the claims file. • It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. • A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. The Veteran should be informed that failure to appear for these examinations, without good cause, may cause his claim to be denied. See 38 C.F.R. § 3.655. All efforts to schedule the examination should be documented in the file. 6. Finally, send the Veteran and his representative a statement of the case that addresses the issues of whether the Veteran is entitled to service connection for a left wrist disorder and entitlement to SMC. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. 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.