Citation Nr: 21013801 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-09 483 DATE: March 10, 2021 ORDER Entitlement to an evaluation in excess of 40 percent for service-connected bilateral hearing loss is denied. REMANDED Entitlement to service connection for a sleep disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT Hearing has been manifested by hearing acuity of no worse than level I hearing in the right ear and level II hearing in the left ear. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1961 to August 1965. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in August 2020, when it was remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that while on remand, in October 2020, the RO proposed a reduction in the evaluation of the service-connected bilateral hearing loss from 40 percent to a non-compensable rating of 0 percent. In a January 2021 rating decision, the RO effectuated this reduction, effective April 1, 2021. This rating decision has not yet been effectuated. If the Veteran would like to appeal that rating reduction, he should do so on the appropriate form as prescribed by the Secretary. 1. Entitlement to an evaluation in excess of 40 percent for service-connected bilateral hearing loss Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Here, the Veteran filed his claim for an evaluation in August 2017. Accordingly, relevant evidence from August 2016 until the present will be considered. 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 a disability from defective hearing, the rating schedule establishes eleven auditory levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual’s level of disability, Table VI is used to assign a roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the puretone threshold average. 38 C.F.R. § 4.85(b). Table VII is used to determine the percentage evaluation by combining the roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). If impaired hearing is service-connected in only one ear, the nonservice-connected ear will be assigned a roman number designation of level I. 38 C.F.R. § 4.85. The rating criteria for alternative ratings when an exceptional pattern of hearing is met. If the puretone threshold at each of the specified frequencies of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 Hertz, the roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher roman numeral. 38 C.F.R. § 4.86(b). In an October 2017 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 75 80 85 85 81.25 LEFT 75 85 90 85 83.75 While puretone thresholds were tested in both ears, the examiner stated that testing for Maryland CNC speech recognition threshold testing could not be done as the hearing thresholds were too high and “equipment limits.” In an October 2020 audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 60 65 56.25 LEFT 45 55 70 60 60 Speech audiometry revealed speech recognition ability of 94 percent bilaterally. The October 2017 VA audiological findings correspond to a level VII hearing in the right ear and level VIII hearing in the left ear. 38 C.F.R. § 4.85, Table VIA. Under Table VII, this yields a 40 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. The October 2020 VA audiological findings correspond to a level I hearing in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Under Table VII, a designation of level I hearing in the right ear and level II hearing in the left ear yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board notes that the VA audiological examination reports noted above each describe the effects of the Veteran’s hearing impairments on his daily life. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). At both the October 2017 and October 2020 examinations, the Veteran asserted difficulty hearing and understanding his patients and coworkers. The Board finds the Veteran’s lay statements competent and credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by showing of an interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). The evaluation of hearing loss, however, is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Consideration has also been given to whether there is an exceptional pattern of hearing impairment. However, the examination report does not show puretone threshold levels that were 55 decibels or higher at each of the four frequencies, i.e., at 1000, 2000, 3000 and 4000 Hertz, nor were they 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86(a), (b). Accordingly, the claim of entitlement to an evaluation in excess of 40 percent is denied. The Board has also considered whether referral for extraschedular consideration is indicated by the record. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1) (2018). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Veteran’s symptoms and functional impairment are contemplated by 38 C.F.R. § 4.85, Diagnostic Code 6100 and 38 C.F.R. § 4.86. Diminished auditory acuity and speech recognition testing are the foundation of the schedular criteria. Although the criteria for hearing loss are strictly based on examination findings that are plugged into tables to determine the level of disability, built into this rating system is the recognition that the disability may impose functional impairment based on the Veteran’s ability to understand speech. Hence, the rating is based, in part, on speech recognition (i.e., the Veteran’s complaints of difficulty hearing his patients and coworkers). See 38 C.F.R. § 4.85(a) (“An examination for hearing impairment for VA purposes... must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids.”). Although the speech discrimination testing does not duplicate all listening situations, it offers consideration as to the level of functional impairment due to Veteran’s ability to understand speech by testing without the assistance of hearing aids. The criteria of Diagnostic Code 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment. See Evaluation of Hearing Loss, 52 Fed. Reg. 17,607 (May 11, 1987). As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85, 4.86a, 4.87a and Tables VI and VII. In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range. See Evaluation of Hearing Loss, 52 Fed. Reg. 17,607. Overall, the new schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment. See Evaluation of Hearing Loss, 52 Fed. Reg. 17,607. The rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25,206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran’s Health Administration (VHA) in developing criteria that contemplated situations in which a Veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real-life industrial setting. See Schedule for Rating Disabilities; Diseases of the Ear and Other Sense Organs, 59 Fed. Reg. 17295 (April 12, 1994). Thus, the Board finds that functional impairment due to hearing loss that is compounded by difficulty hearing speech is a disability picture that is considered in the current schedular rating criteria. The Veteran’s description of an inability to hear and discriminate speech has been properly measured according to pure tone averages and speech discrimination. In short, the rating criteria reasonably describe the Veteran’s disability levels and symptomatology. Furthermore, if the Veteran’s hearing loss impacts the ordinary conditions of daily life, this is contemplated in the schedule of ratings and is not a proper consideration for an extraschedular analysis. Given that the average impairment in earning capacity is the standard, within the current rating schedule, many veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average as a result of their disability. Thun, 22 Vet. App. at 116. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2018) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As the evidence preponderates against the claim, there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 2. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected PTSD, is remanded. Remand is required for substantial compliance with the August 2020 Board remand directives, and an addendum VA medical opinion. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). The Veteran underwent a new VA examination in October 2020 where the examiner provided a negative nexus opinion. On a direct, and a secondary basis, the examiner stated that the sleep disturbances are subsumed under the service-connected PTSD and do not warrant a separate diagnosis; however, the examiner provided no other supporting rationale. Additionally, the August 2020 Board remand instructed the examiner to address the July 2017 private medical opinion, and the service treatment records noting fatigue and insomnia. Although the examiner noted that they reviewed those records, they did not actually address them. Accordingly, remand is required for an addendum VA medical opinion. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the etiology of the sleep disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether there is a current sleep disorder. In doing so, the examiner must address the provisional diagnosis in the July 2017 private examination. (b) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the sleep disorder had onset in, or is otherwise related to, active service. (c) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the sleep disorder is caused by the service-connected PTSD. (d) The examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the sleep disorder is aggravated by the service-connected PTSD. (e) The examiner must address the following: 1) the July 2017 private medical opinion; 2) the August 1963 STR noting fatigue; 3) the December 1963 STR noting insomnia; 4) the October 2020 VA medical opinion. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.