Citation Nr: 21014085 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-19 840 DATE: March 11, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for type II diabetes mellitus is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss is manifested by no worse than Level I hearing acuity in his right ear and Level I hearing acuity in his left ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1961 to February 1962 and from January 1963 to January 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in October 2011 and November 2012 by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The transcript is of record. The issues on appeal were remanded for additional development in March 2020. 1. Entitlement to an initial compensable rating for bilateral hearing loss. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.   It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations provide a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. A hearing examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test using the Maryland CNC test and a puretone audiometry test. VA audiometric examinations for rating purposes are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, or other reasons, or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more or when the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The “rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment.” Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The United States Court of Appeals for Veterans Claims (hereinafter “the Court”) determined that the evidence cited in that case—difficulty understanding speech in noisy settings, embarrassment at having to ask others to repeat themselves, trouble locating the origins of sounds, inability to hear the television or to use the telephone—were not exceptional or unusual symptoms but simply manifestations of hearing loss and its resultant effect. Id. at 371-72. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran contends that a higher schedular rating is warranted for his service-connected bilateral hearing loss. His July 2012 correspondence was accepted as an original service connection claim for bilateral hearing loss. On VA authorized audiological evaluation in November 2012, pure tone thresholds, in decibels, were as follows: in the Veteran’s right ear, 10 (1000 Hz.), 40 (2000 Hz.), 50 (3000 Hz.), and 55 (4000 Hz.); and in his left ear, 15 (1000 Hz.), 30 (2000 Hz.), 45 (3000 Hz.), and 45 (4000 Hz.). Averages for VA ratings purposes were 38.75 in his right ear and 33.75 in his left ear. Speech audiometry revealed speech recognition ability of 96 percent in his right ear and of 96 percent in his left ear. The diagnoses included sensorineural hearing loss in the right and left ear. It was noted the disability did not impact his ordinary conditions of daily life, including the ability to work. On VA authorized audiological evaluation in October 2020, pure tone thresholds, in decibels, were as follows: in the Veteran’s right ear, 20 (1000 Hz.), 45 (2000 Hz.), 50 (3000 Hz.), and 50 (4000 Hz.); and in his left ear, 15 (1000 Hz.), 45 (2000 Hz.), 45 (3000 Hz.), and 50 (4000 Hz.). Averages for VA ratings purposes were 41 in his right ear and 39 in his left ear. Speech audiometry revealed speech recognition ability of 94 percent in his right ear and of 96 percent in his left ear. The diagnoses included bilateral sensorineural hearing loss. It was noted the disability impacted his ordinary conditions of daily life, including the ability to work, which the Veteran described as having difficulty understanding speech and having to ask that speech be repeated. Based upon the evidence of record, the Veteran’s service-connected bilateral hearing loss is manifested by no worse than Level I hearing acuity in his right ear and Level I hearing acuity in his left ear (which warrants a 0 percent rating). The November 2012 and October 2020 VA examination findings demonstrating hearing at these levels are shown to have been based upon the requisite testing criteria. The Court has upheld VA’s policy of conducting audiometric testing in a sound-controlled room, which is designed to obtain the necessary information for the full and accurate application of the hearing loss rating schedule. Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007). Moreover, the Court recognized in Doucette v. Shulkin, 28 Vet. App. 366 (2017) that VA’s audiometric tests are specifically designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment; thus, the Veteran’s difficulty hearing or understanding speech or other sounds in various contexts was sufficiently measured during the Veteran’s VA audiology examinations. Therefore, the claim for an increased rating is denied.   REASONS FOR REMAND 1. Entitlement to service connection for coronary artery disease is remanded. 2. Entitlement to service connection for type II diabetes mellitus is remanded. 3. Entitlement to service connection for hypertension is remanded. The Veteran contends, in essence, that his coronary artery disease, type II diabetes mellitus, and hypertension developed as a result of active service, specifically as secondary to herbicide agent (Agent Orange) exposure. He states that exposure to Agent Orange occurred during a period of service in Okinawa, Japan, at Kadena Air Base and White Beach. He also maintains that he was exposed to Agent Orange while performing security duties near aircraft that had flown in areas where herbicide agents were used. In its March 2020 remand, the Board requested that VA take appropriate efforts to verify whether the Veteran was exposed to herbicide agents. It was noted that in support of his claim the Veteran had provided a copy of an article from The Asia-Pacific Journal, FOIA Documents Reveal Agent Orange Dioxin, Toxic Dumps, Fish Kills on Okinawa Base. Two Veterans Win Compensation, Many More Denied. (Vol. 13, Iss. 40, No. 1, Oct. 05, 2015). The Board remand directives included that a copy of that article, a copy of correspondence dated in May 2014, and a copy of the October 2018 hearing transcript accompany the request for verification. Records dated in April 2020 show VA received notice that the Joint Services Records Research Center (JSRRC) was temporarily closed due to the COVID-19 pandemic. VA also obtained a copy of a January 2013 report titled INVESTIGATIONS INTO ALLEGATIONS OF HERBICIDE ORANGE ON OKINAWA, JAPAN. A July 2020 service department report stated there was no record of exposure to herbicide agents.   Although the available record shows VA has obtained evidence pertinent to the Veteran’s claims, there is no indication the July 2020 service department report included consideration of the documents identified by the Board in its March 2020 remand. Nor has any explanation been provided by VA addressing how the January 2013 report may be considered as adequately addressing the October 2015 article which referred to the release of government documents in September 2015. A remand by the Board confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, additional development as to this matter is required prior to appellate review. The matters are REMANDED for the following action: Attempt to verify the Veteran’s asserted in-service exposure to herbicide agents. Any request sent to the Joint Services Records Research Center (JSRRC), or other appropriate entity, must include copies of his correspondence dated in May 2014, the October 2018 hearing transcript, the article from The Asia-Pacific Journal, FOIA Documents Reveal Agent Orange Dioxin, Toxic Dumps, Fisk Kills on Okinawa Base. Two Veterans Win Compensation, Many More Denied. (Vol. 13, Iss. 40, No. 1, Oct. 05, 2015), and the January 2013 report titled INVESTIGATIONS INTO ALLEGATIONS OF HERBICIDE ORANGE ON OKINAWA, JAPAN. If more details are needed, contact the Veteran to request the information. If there is still insufficient information   to verify exposure to herbicide agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Douglas 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.