Citation Nr: 21021118 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 16-23 998 DATE: April 9, 2021 ORDER Entitlement to an initial rating for bilateral hearing loss in excess of 30 percent prior to September 4, 2015 is denied. Entitlement to an initial 100 percent rating for bilateral hearing loss from September 4, 2015 to September 25, 2018 is granted. REMANDED Entitlement to service connection for a cervical spine disorder, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. Prior to September 4, 2015, the Veteran had no worse than Level IV hearing loss in the right ear and Level XI hearing loss in the left ear. 2. On September 25, 2018, the Veteran had Level XI hearing loss in each ear. 3. Hearing loss consistent with the September 2018 findings was factually ascertainable as early as September 4, 2015. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating for bilateral hearing loss in excess of 30 percent prior to September 4, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for entitlement to a 100 percent rating for bilateral hearing loss from September 4, 2015 to September 25, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to August 1965 and from August 1966 to August 1969. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters in January 2018 and a December 2018 rating decision granted a 100 percent rating for bilateral hearing loss, effective September 25, 2018. In March 2019, the Board denied a higher rating for bilateral hearing loss for the period prior to the total rating and entitlement to service connection for a cervical spine disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2019 Order, the Court granted a September 2019 Joint Motion for Partial Remand (JMPR) that vacated the portion of the Board decision that denied a rating in excess of 30 percent for bilateral hearing loss and entitlement to service connection for a cervical spine disorder. The appeals dismissed were increased ratings for a lumbar disability and a post-operative right inguinal hernia and entitlement to service connection for a chronic mental disability for the purposes of establishing eligibility to medical treatment. In March 2020, the Board remanded the case for development consistent with the JMPR. 1-2. Entitlement to an initial rating for bilateral hearing loss in excess of 30 percent prior to September 25, 2018. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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 rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for rating hearing impairment requires the consideration of the results of examinations using controlled speech discrimination tests (Maryland CNC) with the results of puretone audiometry tests. The results are charted on Table VI and Table VII, as set forth in the Rating Schedule. In order to establish entitlement to a higher rating for hearing loss it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. 38 C.F.R. § 4.85. Hearing tests will be conducted without hearing aids. An exceptional pattern of hearing impairment exists when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz are each 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. When this occurs, a different method for rating hearing loss may be used involving Table VIa. 38 C.F.R. § 4.86. On July 2012 VA examination, the Veteran reported he could not hear well. He had trouble following conversation even with visual cues. He stated that it was frustrating and that he did not do things because he could not hear or understand what was being said. The audiogram revealed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 85 80 55 50 50 LEFT 80 80 85 80 75 The average pure tone threshold was 59 in the right ear and 82 in the left ear. The Maryland CNC speech recognition score was 76 percent in the right ear and 20 percent in the left ear. See May 2016 CAPRI records. On September 4, 2015, the Veteran complained of having a significant decrease in hearing. He stated that it was “bad all the time, but sometimes worse than others.” Pure tone air and bone conduction results revealed severe to profound SNHL in the right ear and severe SNHL in the left ear. Speech discrimination testing was conducted via CD Recordings using NU 6 CNC Wordlists. The results showed the right ear had 12 percent speech discrimination at 100 dB and that the left ear had 8 percent speech discrimination at 100 dB. The hearing evaluation dated May 2, 2013 completed at Albany Audiology indicated a mild to severe SNHL in the right ear. The current results revealed a significant decrease of approximately 50 dB hearing loss overall in the right ear in the past 2 years. See June 2017 CAPRI records. A May 2016 hearing re-screening record notes that the Veteran was seen in 2015 and that those findings revealed a threshold shift that required stronger hearing aids. The re-screening revealed a severe rising to moderately severe hearing loss in the right ear and a severe hearing loss in the left ear. Another audiologist previously sent the Veteran to ENT for changes in his hearing after a hearing test in 2015. The Veteran’s wife stated that they were seen by ENT in Warner Robins about a year earlier. The current screening indicated stable hearing from the 2015 evaluation. See September 2016 CAPRI records. A June 2017 record notes that previous results were consistent with bilateral sensorineural hearing loss and that the current results indicated no significant change in hearing. The right ear showed severe to profound SNHL and the left ear showed severe to profound SNHL. Speech discrimination testing was conducted via CD Recordings using NU 6 CNC Wordlists. The results showed the right ear had 4 percent speech discrimination at 100 dB and the left ear had 8 percent speech discrimination at 100 dB. See February 2018 CAPRI records. On September 25, 2018 VA examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 80 80 80 75 LEFT 80 85 80 80 75 The average pure tone threshold was 79 in the right ear and 80 in the left ear. The Maryland CNC speech recognition score was 24 percent in the right ear and 8 percent in the left ear. The Veteran reported having difficulty with conversational speech. See October 2018 C&P Exam. When the results of the July 2012 VA examination are input into Table VI, the Veteran is shown to have Level IV hearing impairment in the right ear and Level XI hearing impairment in the left ear. Where these two levels intersect on Table VI shows that a 30 percent rating is assigned. This is consistent with the current 30 percent rating. When the results of the September 2018 VA examination are input into Table VI, the Veteran is shown to have Level XI hearing impairment in both ears. Where these two levels intersect on Table VI shows that a 100 percent rating is assigned. While the September 2018 VA examination is adequate to establish entitlement to a 100 percent rating for the Veteran’s bilateral hearing loss, the Board may consider other evidence to determine the effective date for the 100 percent rating. Although the hearing tests in September 2015 and June 2017 do not conform with the rating requirements of 38 C.F.R. § 4.85 because the Maryland CNC word discrimination test was not used, the effective date for rating claims is governed by 38 U.S.C. § 5110; 38 C.F.R. § 3.400. See Swain v. McDonald, 27 Vet. App. 219, 223-224 (2015). Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). However, an effective date for increased disability compensation may be earlier than the date of receipt of the application. In such cases, the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). Thus, as shown in Swain, if these earlier hearing tests are consistent with the findings of the September 2018 VA examination, then an effective date for a 100 percent rating may be established prior to September 25, 2018 VA examination. Since the Board is not competent to make this determination, the Board remanded the matter for an opinion. In April 2020, a VA audiologist reviewed the case and the literature. Per the study: “A Comparative Evaluation of the Maryland NU 6 Auditory Test” word recognition scores for the Maryland NU 6 and Maryland CNC Tests were remarkably similar but differed significantly from those obtained on the W-22 Test (1983). The audiologist stated that the VA results and the C&P results, albeit from different word lists have been found to be qualitatively similar. Thornton and Raffin (1978) and Carney and Schlauch (2007) both identified critical differences in speech discrimination scores. That is to say that there is variation in scores. A score of 24 percent in the right for a 50 word list as seen on the Veteran’s C&P examination has a score range of 10 to 42 percent. When looking at the scores obtained for the right ear in 2015 and 2017 the range would be 4 to 26 percent (4 to 32 percent if 25 words were used) based on the 2015 score and 0 to 14 percent based on the 2017 score (0 to 20 percent if only 25 words were used). So, despite having what would seem to be a large difference on paper, the scores are not statistically different. The Veteran’s pure tone average for the right ear was 78.33 and 81.67 for the left ear. Mendel et al found in 2014 that for pure tone averages like the Veteran’s, the average speech discrimination percentage on the Maryland CNC was 60 percent (range of 39 to 82 percent) for the right ear and for the left ear the average score was 51 percent (range of 30 to 72 percent). While there is no explanation as to why the Veteran’s scores were below the scores above, they have been shown to be statistically the same. Given the above, it is at least as likely as not that the NU 6 CNC and the Maryland CNC are similar enough that the scores should be considered equivalent. It should also be noted that a speech discrimination score of 24 percent has a range of 10 to 42 percent for a 50 word list; therefore, the difference seen from 2015 and 2017 to 2018 is not considered to be statistically significant. See April 2020 C&P Exam. Based on this opinion, the findings of the NU 6 word recognition tests in 2015 and 2017 are comparable with and not significant differently from the Maryland CNC word recognition test result in 2018. The 2015 and 2017 records do not include the complete results of the audiometry tests, so a direct comparison cannot be made with the 2018 test. However, the records indicate that the two results are consistent with each other and the September 2015 record notes that the Veteran’s hearing significantly worse than what was shown on an earlier examination in the right ear by 50 decibels overall. The May 2016 record also reflects significant worsening. The Board recognizes that the audiogram results are not included with 2015 and 2017 speech discrimination scores, but even if those results were similar to the audiogram findings in 2012, the severity of the diminished word recognition scores would have yielded similar results as those on the 2018 VA examination based on Table VI. After consideration of all the evidence and resolving reasonable doubt in the Veteran’s favor, the September 2015 hearing evaluation results are not significantly different from the September 2018 VA examination findings. Thus, the Board finds a 100 percent rating for the Veteran’s bilateral hearing loss is established effective September 4, 2015. Since the evidence prior to is the July 2012 VA examination, which only contains findings consistent with a 30 percent rating, a preponderance of the evidence is against a rating in excess of 30 percent prior to September 4, 2015. REASONS FOR REMAND 3. Entitlement to service connection for a cervical spine disorder, to include as secondary to is remanded. The September 2019 JMPR essentially stated that the September 2018 VA opinions regarding the etiology of the Veteran’s cervical spine disorder were inadequate. It noted that the examiner reasoned that the “record does not show any other disability which can cause neck condition. There is no evidence of record to support any claim that the low back condition caused impairment of the cervical spine.” The examiner also found it was “less likely than not [Appellant’s] neck condition was aggravated beyond its natural progression by any service connected condition to include the low back condition.” The examiner reasoned that the Veteran “does not have any other service connected disability which can aggravated his neck condition. There is no record of complaints other than the sing[l]e 2011 report of any neck pain and or reports of increased neck pain caused by the back during any examinations.” The JMPR found that while the examiner opined that a low back condition did not cause impairment of the Veteran’s cervical spine, the examiner does not appear to explain the medical rationale for that conclusion. The JMPR also noted that the examiner does not appear to have opined on the likelihood that Veteran’s claimed cervical spine condition was proximately due to or the result of, or aggravated by, his service-connected right and left lower extremity radiculopathy or his service-connected right inguinal hernia. See October 2019 CAVC Decision. The Board finds that the February 2021 opinions are equally lacking. See February 2021 C&P Exams. Thus, additional opinions are needed. The Board also notes that that aside from the June 1965 separation examination and medical history report, there are no service treatment records from the Veteran’s first period of active duty. To ensure the record is complete, additional effort should be made to ensure there are no outstanding records. The matter is REMANDED for the following action: 1. Undertake all necessary actions to obtain service treatment records from the Veteran’s first period of active duty from August 1962 to August 1965. All requests and responses received from each contacted entity should be associated with the claims file. If the requested records are unavailable, issue a formal finding of unavailability and notify the Veteran and allow him the opportunity to submit any service treatment records in his possession. 2. After # 1 is completed, make the Veteran’s claims file and a copy of this remand available for review by an appropriate clinician to determine the etiology of the Veteran’s cervical spine disorder. Based on a review of the record and the Veteran’s contentions, the clinician should address the following: a) The Veteran has been diagnosed with having cervical strain and degenerative arthritis. He contends that he injured his cervical spine in service while trying to catch a truck transmission that started to fall and having a few hard parachute landings during his first period of service. The record shows he earned an expert parachute badge during his first period of active duty. • If there is no evidence of a cervical spine injury in the STRs, would the type of in-service injuries the Veteran reported at least as likely as not (50 percent probability ore greater) have been severe enough to seek treatment in service? • Would the type of cervical spine injuries that reportedly occurred during service at least as likely as not have resulted in chronic symptoms and resulted in his current cervical strain or degenerative joint disease? • Does the Veteran have a current cervical spine disorder that is at least as likely as not related to service? b) Does the Veteran have a cervical spine disorder that is at least as likely as not caused by a service-connected low back or bilateral lower extremity disability? c) Does the Veteran have a cervical spine disorder that is at least as likely as not aggravated by a service-connected low back or bilateral lower extremity disability? d) The clinician must explain the medical basis for the rationale that supports each opinion. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Bredehorst 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.