Citation Nr: 21013053 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 11-23 932 DATE: March 8, 2021 ORDER Entitlement to increased ratings for bilateral hearing loss, rated as noncompensable prior to March 30, 2012; 10 percent from March 30, 2012, to April 20, 2014; 20 percent from April 21, 2014, to December 7, 2020; and 60 percent from December 8, 2020, is denied. REMANDED Entitlement to service connection for arthritis is remanded. FINDINGS OF FACT 1. During the relevant period prior to March 30, 2012, the Veteran’s bilateral hearing loss manifested in hearing acuity no worse than Level II in the right ear and Level IV in the left ear or Level III in the right ear and Level III in the left ear. 2. There are no audiological testing results during the period from March 30, 2012, to April 20, 2014, that are adequate for decision-making purposes. 3. During the period from April 21, 2014, to December 7, 2020, the Veteran’s bilateral hearing loss manifested in hearing acuity of no worse than Level IV in the right ear and no worse than Level VIII in the left ear. 4. There are no audiological testing results during the period beginning December 8, 2020, that are adequate for decision-making purposes. The Veteran declined to attend the VA audiological examination that was scheduled following the May 2020 Board remand CONCLUSION OF LAW The criteria for entitlement to increased ratings for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1962 to November 1966. The Veteran indicated in his September 2011 substantive appeal that he wished to testify at a Travel Board hearing. However, in a later September 2011 correspondence, he withdrew his prior request for a hearing. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.704(e). The Board of Veterans’ Appeals (the Board) remanded this case in November 2017 and May 2020. Relevant to the issue denied in this decision, the November 2017 remand directed the Agency of Original Jurisdiction (AOJ) to associate with the record all outstanding audiological examination results included in the VA treatment records, to specifically include those dated in May 2009 and October 2013. The May 2020 remand directed the AOJ to schedule the Veteran for an examination to determine the current severity of his service-connected bilateral hearing loss. Pursuant to the remands, the AOJ associated a copy of the audiological examination referenced in the May 2009 VA treatment records, made appropriate efforts to obtain the October 2013 audiological examination, and scheduled the Veteran for a VA examination as to his bilateral hearing loss. The record shows that the Veteran declined to appear for the scheduled VA examination. The record also reflects that it was determined that no further information regarding the October 2013 audiological examination is available beyond what is included in the VA treatment records. Accordingly, the Board finds that the Department of Veterans Affairs (VA) at least substantially complied with the November 2017 and May 2020 remands as they pertain to the issue denied in this decision. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In January 2020, the Board remanded the issue of entitlement to service connection for hypertension. The actions directed in that remand have not yet been completed, and the issue has not yet been readjudicated by the AOJ or recertified to the Board. Therefore, that issue remains in remand status and is not on appeal before the Board at this time. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to increased ratings for bilateral hearing loss The Veteran seeks increased ratings for bilateral hearing loss. The applicable rating period is from August 20, 2008, one year prior to receipt of the claim, through the present. For a higher rating to be granted during the one-year period prior to the August 20, 2009 claim, it must be factually ascertainable that an increase in disability occurred during that period, otherwise the earliest date an increase may be granted is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Period prior to March 30, 2012 An October 2009 VA examination reveals that the Veteran reported that his hearing loss causes difficulties hearing speech, especially in noisy environments. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 30 40 65 38.75 88% LEFT 20 30 70 55 43.75 68% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level IV in the left ear, which under 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, obtained at a February 2010 VA examination were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 20 30 65 33.75 82% LEFT 15 20 55 60 37.5 76% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear, which under 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, the Board concludes that the criteria for entitlement to a compensable rating for bilateral hearing loss during the relevant period prior to March 30, 2012, have not been met. Period from March 30, 2012, to April 20, 2014 There are no audiological testing results during the period from March 30, 2012, to April 20, 2014, that are adequate for decision-making purposes. Therefore, the Board concludes that the criteria for entitlement to a rating in excess of 10 percent for bilateral hearing loss during that period have not been met. Period from April 21, 2014, to December 7, 2020 An April 21, 2014 VA examination reveals that the Veteran reported his bilateral hearing loss makes it difficult to tell which direction sounds are coming from, makes it difficult for him to hear his phone when it rings, and makes it difficult to hear conversations and the television. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 25 50 75 43.75 72% LEFT 25 65 65 70 56.25 48% Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level VIII in the left ear, which under 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, the Board concludes that the criteria for entitlement to a rating in excess of 20 percent for the period from April 21, 2014, to December 7, 2020, have not been met. Period beginning December 8, 2020 There are no audiological testing results during the period beginning December 8, 2020, that are adequate for decision-making purposes. Therefore, the Board concludes that the criteria for entitlement to a rating in excess of 60 percent for bilateral hearing loss during that period have not been met. Other considerations The Board acknowledges that the record contains several other reports for audiological testing that include pure tone thresholds and speech recognition scores. However, those tests were conducted using speech recognition tests other than the Maryland CNC. The medical professionals who conducted those tests did not indicate that speech discrimination testing was not appropriate. In addition, the pure tone thresholds do not show an exceptional pattern of hearing loss in both ears under 38 C.F.R. § 4.86. Therefore, the pure tone thresholds cannot be used on their own to obtain hearing acuity levels under Table VIA. As such, those tests are not adequate for decision-making purposes. See 38 C.F.R. §§ 4.85(a) and (c), 4.86. As noted above, the Veteran declined to attend the VA audiological examination that was scheduled following the May 2020 Board remand. Although VA has a duty to assist the Veteran in substantiating his claim, that duty is not a one-way street. The Veteran must cooperate in VA’s efforts to assist him. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000); 38 C.F.R. § 3.159(c). VA satisfied its duty to assist by providing the Veteran an opportunity to attend a VA examination to assess the current severity of his bilateral hearing loss. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reports to the VA examiners regarding the functional impact of his service-connected bilateral hearing loss. The Veteran reported that the bilateral hearing loss affects his ability to hear certain sounds and to hear in certain settings. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the probative evidence is against the claim for entitlement to increased ratings for bilateral hearing loss. In reaching this conclusion, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for arthritis is remanded. The May 2020 Board remand directed that an addendum opinion be obtained as to whether the Veteran’s arthritis may be related to his active service, to include in-service heavy lifting and in-service exposure to lead and zinc chromate. On remand, a VA examiner opined in June 2020 that the Veteran’s arthritis was less likely than not incurred in service or caused by an in-service injury, event, or illness. The rationale for that opinion reflects consideration of the Veteran’s contention that the arthritis is due to in-service exposure to lead and zinc chromate. However, it does not address the Veteran’s contention that the arthritis is due to in-service heavy lifting. The issue must be remanded so that an addendum opinion may be obtained. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s arthritis is at least as likely as not (50 percent probability or greater) related to his active service, to include in-service heavy lifting. The opinion must reflect consideration of the Veteran’s statement received in July 2010 in which he reported that, as an ordnance man, he was required to handle 1,000 and 500 pound napalm and 1,000 and 500 pound fragmentation bombs in tight quarters on a ship without equipment to assist in lifting. For purposes of providing the opinion, the clinician should accept the Veteran’s statement as true. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.