Citation Nr: 21013136 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-41 711 DATE: March 8, 2021 ORDER Entitlement to a compensable evaluation from October 24, 2013 to August 30, 2020 for bilateral hearing loss is denied. Entitlement to an evaluation in excess of 80 percent from August 31, 2020 forward for bilateral hearing loss is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence of record establishes that the Veteran’s right ear hearing loss was manifested by at worst Level III, and his left ear hearing loss was manifested by at worst Level III, in determining his rating for bilateral hearing loss from October 24, 2013 to August 30, 2020. 2. The evidence of record is against finding a compensable rating from October 24, 2013 to August 30, 2020 for the Veteran’s bilateral loss is warranted. 3. The evidence of record establishes that the Veteran’s right ear hearing loss was manifested by at worst Level XI, and his left ear hearing loss was manifested by at worst Level IX, in determining his rating for bilateral hearing loss from August 31, 2020 forward. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss from October 24, 2013 to August 30, 2020 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to a rating in excess of 80 percent for bilateral hearing loss from August 31, 2020 forward are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from June 1966 to March 1970. The Veteran had service in the blue waters of the Republic of Vietnam and exposure to herbicides has been conceded. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was previously before the Board and the Board remanded the issues considered here in by a decision from October 2018. The appeal has now been returned to the Board for further appellate review. During the course of the appeal, service connection was granted for coronary artery disease, status post coronary artery bypass graft, service connection was granted for diabetes mellitus type II and service connection for tinnitus was also granted in a September 2020 rating decision. As such results in a full grant of benefits sought on appeal, as to these issues, and these issues are no longer before the Board. The Veteran contends that he is entitled to an initial compensable rating for his bilateral hearing loss and is entitled to rating in excess of 80 percent from August 31, 2020. The Veteran, through his representative, also contends that the VA examinations regarding service connection for GERD, ED, and hypertension were inadequate because the examiner did not provide sufficient rationale for the opinions by making conclusory statements with no support for the conclusions and the opinion did not adequately consider whether the Veteran’s medications caused his claimed conditions. Furthermore, it is maintained that the examiner did not apply the correct standard of proof, which is whether it is at least as likely as not, but rather, used a higher standard of proof. The Board finds a remand is warranted as to the outstanding service connection claims, which will be discussed in the remand section below. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a compensable evaluation from October 24, 2013 to August 30, 2020 for bilateral hearing loss 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 speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (“specified frequencies”). To evaluate the degree of disability from service-connected defective hearing, the rating 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, DC 6100. 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). Under 38 C.F.R. § 4.86, when the puretone 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(a). Further, when the puretone 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. The Veteran underwent a VA examination in June 2014, and the examiner was able to successfully complete audiometric testing. Testing showed puretone thresholds of 40, 70, 85, and 95 decibels in the right ear and 30, 65, 90, and 95 decibels in the left ear at the specified frequencies, resulting in average puretone thresholds, when rounded to the nearest whole number, of 73 decibels in the right ear and 70 decibels in the left. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 88 percent in the left ear. Applying those results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level III hearing loss in the right ear and Level III hearing loss in the left ear. The Veteran’s puretone thresholds at each of the four specified frequencies were not 55 decibels or more and the puretone thresholds were not 30 decibels at 1000 Hertz and 70 decibels or more at 2000 Hertz. As such, Table VIA in 38 C.F.R. § 4.85 is not applicable. Applying the Veteran’s Level III hearing loss in his right ear, and Level III hearing loss in his left ear, to Table VII in 38 C.F.R. § 4.85 results in a percentage of 0 for the bilateral hearing loss. Furthermore, a review of the medical evidence or record does not provide any information that supports an increased rating prior to August 31, 2020. In fact, medical documentation from January 2019 indicates that the Veteran had no change in his hearing since June 2014. The Board has considered the Veteran’s reports of ongoing difficulty hearing and a worsening of his hearing loss. The Veteran is competent to testify to such lay observable symptomology, and there is no evidence that these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his bilateral hearing loss during the period on appeal. Even in consideration of the Veteran’s reports of ongoing difficulty hearing and a worsening of his hearing loss the Board gives more probative weight to the competent medical evidence. The Veteran is competent to relay his current symptoms and these statements are credible. However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. The VA examinations at worse using Table VI, noted Level III hearing in the right ear and Level III hearing in the left ear, combining these levels according to Table VII, results in a noncompensable rating. Further the VA examinations, and treatment records do not demonstrate an exceptional pattern of hearing as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz, or a pure tone threshold of 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz. The Board finds no basis to alternatively rate this claim under Table VIA. As such a compensable rating is not warranted for this period. 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. Relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The VA examiner in June 2014 noted functional effects on the Veteran’s ordinary conditions of daily life in that the Veteran’s hearing loss results in ongoing difficulty hearing and at times his ability to work, but does not impact his ability to obtain and retain gainful employment. The Board has carefully considered the Veteran’s and his representative’s contentions that his hearing loss impacts his activities of daily living. Further, the Board notes the Veteran’s contentions that the current rating criteria do not reflect the impact his hearing loss has on his activities of daily living. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by an application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board considers the subjective reports of hearing difficulty but places great weight on the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, a compensable rating from October 24, 2013 to August 30, 2020 is not warranted. 2. Entitlement to an evaluation in excess of 80 percent from August 31, 2020 forward for bilateral hearing loss The Veteran underwent a VA examination in August 2020, and the examiner was able to successfully complete audiometric testing. Testing showed puretone thresholds of 85, 100, 105+, and 105+ decibels in the right ear and 70, 90, 105, and 105 decibels in the left ear at the specified frequencies, resulting in average puretone thresholds, when rounded to the nearest whole number, of 99 decibels in the right ear and 93 decibels in the left. Speech audiometry revealed speech recognition ability of 32 percent in the right ear and 46 percent in the left ear. Applying those results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level XI hearing loss in the right ear and Level X hearing loss in the left ear. Based on the examination, either Table VI or VIA could be applied. Table VIA yielded a finding of Level X hearing loss in the right ear and Level IX hearing loss in the left ear. As such, application of Table VI is more beneficial to the Veteran. Applying the findings from Table VI to Table VII in 38 C.F.R. § 4.85 results in a percentage of 80 percent for the bilateral hearing loss. No additional evidence has been received since August 31, 2020 to support a rating in excess of 80 percent for the Veteran’s bilateral hearing loss. While the Board has considered the Veteran’s lay statements of record regarding his ongoing difficulty hearing, communicating and a worsening of his hearing loss the Board gives more probative weight to the competent medical evidence. The Board notes an increased rating of 80 has been granted during the appeal, and finds that a rating in excess of 80 percent is not warranted. The Veteran is competent to relay his current symptoms and these statements are credible. However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. The VA examination notes that applying those results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level XI hearing loss in the right ear and Level X hearing loss in the left ear. Based on the examination, either Table VI or VIA could be applied. Table VIA yielded a finding of Level X hearing loss in the right ear and Level IX hearing loss in the left ear. As such, application of Table VI is more beneficial to the Veteran. Relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The VA examiner in August 2020 noted functional effects on the Veteran's ordinary conditions of daily life in that the Veteran’s hearing loss results in difficulty hearing in conversations and understanding others in particular with noisy backgrounds. Often times the Veteran must ask others to repeat themselves and has difficulty hearing others when speaking on the telephone. without the use of hearing aids, and an increased difficulty hearing when sound systems are used. The Board has carefully considered the Veteran’s and his representative’s contentions that his hearing loss impacts his activities of daily living. Further, the Board notes the Veteran’s contentions that the current rating criteria do not reflect the impact his hearing loss has on his activities of daily living. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by an application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board considers the subjective reports of hearing difficulty but places great weight on the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Accordingly, a rating in excess of 80 percent from August 31, 2020 forward is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for GERD is remanded. 2. Entitlement to service connection for ED is remanded. 3. Entitlement to service connection for hypertension is remanded While the Board regrets the additional delay, due to the VA’s failure to assist, the Veteran’s claim of entitlement to service connection for GERD, ED, and hypertension must be remanded. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As part of that duty to assist, once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In October 2020, the Veteran was afforded a VA examination to determine if the Veteran’s GERD, ED, and hypertension were caused by, or aggravated by, his service connected coronary artery disease or diabetes mellitus type II, to include whether the Veteran’s medications caused or aggravated his GERD, ED, or hypertension. The examiner opined that each of the conditions claimed are less likely than not proximately due to or the result of the Veteran’s service-connected conditions. The examiner provided a fair amount of analysis regarding each of the conditions, yet the rationales provided no medical research to support the findings. As such, it is unclear whether the examiner’s conclusions were based upon personal opinions or was based upon sound medical research. Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the examiner provided many conclusions, but whether the rationale for those conclusions is sound is not clear as no references to medical research was provided to support the findings. Furthermore, it appears that the examiner made determinations based largely upon a lack of medical documentation. However, a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran’s current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran’s representative has also charged that the examiner did not apply the proper standard of proof. Although the examiner did reference the at least likely as not standard of proof in the primary conclusion, the rationale did not apply that standard of proof within the analysis itself. As such, the Veteran’s representative makes a valid argument. With regard to ED, the examiner did not address the issue of aggravation. A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl, 21 Vet. App. 120 (2007). Additionally, the examiner determined that there is no relationship between the Veteran’s ED and diabetes mellitus type II because the Veteran’s ED pre-dated his diabetes mellitus type II. However, the fact that a secondary condition existed prior to the onset of a primary condition does not, in itself, rule out the possibility that the primary disability aggravated the secondary disability. See, e.g., Frost v. Shulkin, 29 Vet. App. 131 (2017) (noting that 38 C.F.R. § 3.310 (a) does not contain a temporal requirement). The Board also notes that, although not raised by the Veteran, recent information from the National Academy of Sciences raises the issue of a possible association between hypertension and his presumed exposure to herbicide agents in Vietnam. See National Academy of Sciences Report: Veterans and Agent Orange: Update 11 (2018). That information was available at the time of the Veteran’s October 2020 examination, but whether the etiology of the Veteran’s hypertension is related to his herbicide agent exposure was not addressed. Moreover, inasmuch as the Veteran’s hypertension, and medication therefor, might play a role in his GERD and ED, the issues are inextricably intertwined. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for another issue). As such, additional development is required. 4. Entitlement to a TDIU is remanded As the Veteran’s TDIU claim is inextricably intertwined with the claim on appeal, action on that matter is deferred. See Harris; see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, make arrangements to provide the record on appeal to a different examiner, preferably a specialist, for purposes of obtaining opinions with respect to the etiology of the Veteran’s hypertension, GERD, and ED. After reviewing the record, the examiner should address each of the following questions: a). Is it at least as likely as not (i.e., is it 50 percent or more probable) that hypertension, GERD, and/or ED had its onset in, or is otherwise attributable to, the Veteran’s period of active service, to include as a result of his presumed in-service exposure to herbicide agents in Vietnam? Please consider recent information from the National Academy of Sciences to the effect that there is sufficient evidence of an association between hypertension and exposure to herbicides. See National Academy of Sciences Report: Veterans and Agent Orange: Update 11 (2018). b). If it is at least as likely as not that the Veteran’s hypertension is attributable to his period of active service, is it also at least as likely as not that the Veteran’s GERD and/or ED has been (i) caused or (ii) aggravated (i.e., worsened beyond natural progression) by his hypertension, to include as a result of medication therefor? c). Is it at least as likely as not the Veteran’s hypertension, GERD and/or ED has been (i) caused or (ii) aggravated (i.e., worsened beyond natural progression) by his service-connected coronary artery disease and diabetes mellitus, to include as a result of medication therefor? Please also note that, under the law, the fact that a secondary condition existed prior to the onset of a primary condition does not, in itself, rule out the possibility that the primary disability aggravated the secondary disability. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.