Citation Nr: 21022670 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-06 819 DATE: April 19, 2021 ORDER Entitlement to an initial compensable rating for service-connected bilateral hearing loss is denied. Entitlement to an effective date prior to September 8, 2015, for the grant of service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a disability manifested by loss of sense of smell is remanded. Entitlement to service connection for a disability manifested by loss of sense of taste is remanded. Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a left foot disability is remanded. FINDINGS OF FACT 1. Audiometric testing shows that the Veteran’s bilateral hearing loss has been manifested by no worse than Level I hearing loss in each ear; an exceptional hearing loss pattern has not been shown in either ear. 2. The Veteran’s formal claim for service connection for bilateral hearing loss was received on September 8, 2015, and no communication received prior to that date can be reasonably construed as a claim for service connection for this disability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an effective date prior to September 8, 2015, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 501, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to December 1981. (He also had additional service from December 1981 to September 1984. However, a February 2016 VA administrative decision determined that this period of service was dishonorable, which in effect barring any VA benefits based on or arising from such period of service.) Initial compensable rating for service-connected bilateral hearing loss Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different findings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings for service-connected hearing impairments are determined through a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a puretone audiometric test of puretone decibel thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz) with an average puretone threshold obtained by dividing these thresholds by four. The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory level is identified as the point where the percentage of speech discrimination and puretone threshold average intersect. Id. The regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, 4000 Hz) is 55 decibels or more, the Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Likewise, a Roman numeral designation will be determined from either Table VI or Table VIA, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. That numeral will then be evaluated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). The Veteran contends that his service-connected bilateral hearing loss warrants an initial compensable rating because he has difficulty hearing, even when wearing hearing aids and needs to read lips to understand what other people are saying. A May 2017 VA audiological examination provided puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 45 45 LEFT 35 35 45 45 These results show an average puretone threshold of 38.75 decibels in the Veteran’s right ear and 40 decibels in his left ear. Speech recognition ability using the Maryland CNC Test was 100 percent in the right ear and 100 percent in the left ear. These audiometry test results equate to Level I hearing impairment in the Veteran’s right ear and Level I hearing impairment in the left ear, using Table VI. 38 C.F.R. § 4.85. Based on the mechanical application derived from Table VII in 38 C.F.R. § 4.85, these levels result in a zero percent rating. Additionally, an exceptional hearing loss pattern was not shown in either ear. 38 C.F.R. § 4.86. The Veteran underwent another VA audiological examination in December 2019. This audiological evaluation provided puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 45 55 55 LEFT 35 40 45 50 These results show an average puretone threshold of 47.5 decibels in the Veteran’s right ear and 42.5 decibels in his left ear. Speech recognition ability using the Maryland CNC Test was 100 percent in the right ear and 96 percent in the left ear. These audiometry test results equate to Level I hearing impairment in the Veteran’s right ear and Level I hearing impairment in the left ear, using Table VI. 38 C.F.R. § 4.85. Based on the mechanical application derived from Table VII in 38 C.F.R. § 4.85, these levels result in a zero percent rating. An exceptional hearing loss pattern was not shown in either ear. Given these results, the Veteran’s bilateral hearing loss has not approximated the criteria for a compensable rating. No audiometric findings support a compensable evaluation. Accordingly, an increased rating is not warranted. In reaching this decision, the Board does not discount the difficulties the Veteran has with his hearing acuity. However, as noted above, schedular disability ratings for hearing loss are based on a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The audiometric examination results, when compared to the rating criteria, do not warrant a compensable rating. Accordingly, the Board finds that the preponderance of the evidence is against this increased rating claim, and it is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective date prior to September 8, 2015, for the grant of service connection for bilateral hearing loss The Veteran has been assigned an effective date of September 8, 2015, for the award of service connection for bilateral hearing loss and seeks an earlier effective date. The Veteran’s submissions do not indicate what earlier date he seeks. In general, the effective date of an evaluation and an award for compensation under VA regulations is the date that a claim is received or the date that entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the Veteran left service in September 1984 and raised a claim for service connection for bilateral hearing loss in September 2015. See September 2015 Application for Compensation. VA regulations set this date (the day that VA received his claim) as the earliest date on which the effective date for the grant of service connection for bilateral hearing loss can be granted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board has carefully reviewed the evidence of record and has found no formal or informal communication expressing an intent to apply for service connection for bilateral hearing loss prior to September 8, 2015. Thus, the Board finds that the effective date has been appropriately assigned as September 8, 2015, the date of receipt of the claim. Consequently, entitlement to any earlier effective date of service connection for this condition is denied. REASONS FOR REMAND Service connection for a disability manifested by loss of sense of smell The Veteran contends that he has a disability manifested by the loss of sense of smell related to his active service. His VA treatment records indicate that he reported having difficulty smelling food in October 2018 in follow-up treatment for the stage II non-keratinizing squamous cell carcinoma of his left nasopharynx. The Veteran’s service treatment records (STRs) do not reflect medical care for, or complaints of, the loss of sense of smell during service. However, the Veteran contends that his loss of sense of smell may be related to an in-service assault to his face and head in August 1978. The Veteran has not been accorded a VA examination to address his claim for service connection for a disability manifested by the loss of sense of smell. VA’s duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board cannot make a fully informed decision on this claim because no VA examiner has opined whether the Veteran has a current disability manifested by the loss of sense of smell related to his military service, to include the documented in-service assault to his face. A remand is thus necessary to accord the Veteran an examination to determine the nature, extent, and etiology of any disability manifested by the loss of sense of smell that he may have. Service connection for a disability manifested by loss of sense of taste The Veteran contends that he has a disability manifested by the loss of sense of taste related to his active service. His VA treatment records indicate that he reported a decline in taste acuity beginning in December 2018. His STRs do not reflect medical care for, or complaints of, the loss of sense of taste during service. However, the Veteran contends that his loss of sense of taste may be related to an in-service assault to his face and head in August 1978. The Veteran has not been accorded a VA examination to address his claim for service connection for a disability manifested by the loss of sense of taste. VA’s duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board cannot make a fully informed decision on this claim because no VA examiner has opined whether the Veteran has a current disability manifested by the loss of sense of taste related to his military service, to include the documented in-service assault to his face. A remand is thus necessary to accord the Veteran an examination to determine the nature, extent, and etiology of any disability manifested by the loss of sense of taste that he may have. Service connection for a sleep disorder The Veteran contends that he has a sleep disorder related to his active service. His VA treatment records indicate that he has been diagnosed with sleep apnea, as well as sleep onset and maintenance insomnia with daytime hypersomnolence. See April 2015 and March 2019 VA Treatment Records. The Veteran’s STRs do not reflect medical care for, or complaints of, a sleep disorder during his honorable period of service. However, he contends that his sleep difficulties began during his prior, honorable period of service. The Veteran has not been accorded a VA examination to address his claim for service connection for a sleep disorder. VA’s duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board cannot make a fully informed decision on this claim because no VA examiner has opined whether the Veteran’s current sleep disorder is related to his military service. A remand is thus necessary to accord the Veteran an examination to determine the nature, extent, and etiology of his sleep disorder disability. Service connection for a left knee disability The Veteran contends that he has a left knee disability related to his active duty. While his STRs do not document complaints of, or treatment for, a left knee disability, he contends that his in-service road marches caused his left knee problems and notes that he has experienced pain in this joint since service. At a May 2017 VA examination, the examiner diagnosed patellofemoral pain syndrome and opined that it was less likely than not that the Veteran’s left knee condition was related to service because his STRs did not document any left knee problems. However, the examiner did not address the Veteran’s contentions regarding his road marches his belief that his pain stems from those road marches and did not consider whether his reports of in-service marches are consistent with his current diagnosis. The Board thus finds that the medical evidence of record is inadequate as the nature, extent, and etiology of the Veteran’s claimed left knee disability has not been adequately addressed by a VA examiner. Given the lack of adequate medical evidence to make a decision on this matter, the Board finds that the Veteran should be afforded another VA examination to address the nature, extent, and etiology of his left knee disability. Service connection for a lumbar spine disability The Veteran contends that he has a lumbar spine disability related to his active duty. His STRs document a report of back pain and a diagnosis of a low back strain November 1977. He further contends that his in-service road marches caused his lumbar spine problems and that he has experienced low back pain since service. At a May 2017 VA examination, the examiner diagnosed lumbosacral strain and opined that it was less likely than not that the Veteran’s lumbar spine condition was related to service because his STRs did not document any back problems during his service. However, as noted above, the Veteran’s STRs do document reports of back pain and a diagnosis of a low back strain in November 1977. Also, the examiner did not address the Veteran’s contentions regarding his road marches or his belief that his pain stems from those road marches and did not consider whether his reports of in-service marches are consistent with his current diagnosis. An addendum opinion was obtained in September 2019 to address the November 1977 low back strain and the Veteran’s back pain documented in his STRs. The examiner considered the Veteran’s in-service complaints, but ultimately indicated that there was not sufficient evidence of a chronic condition continuing from active duty service to the present and that intermittent back pains and strains commonly resolve within a few weeks. However, the examiner did not address or appear to consider the Veteran’s contentions about his in-service marches and his complaints of low back pain since service. Thus, the medical evidence of record is inadequate as the nature, extent, and etiology of his claimed lumbar spine disability has not been adequately addressed by a VA examiner. Given the lack of adequate medical evidence to make a decision on this matter, the Veteran should be afforded another VA examination to address the nature, extent, and etiology of his lumbar spine disability. Service connection for a left foot disability The Veteran contends that he has a left foot disability related to his active duty. While the Veteran’s STRs from his honorable service period do not document complaints of or treatment for a left foot disability, the Veteran contends that his in service road marches caused his left foot problems and that he experienced pain since service. At a May 2017 VA examination, the examiner diagnosed metatarsalgia, plantar fasciitis, and degenerative arthritis and opined that it was less likely than not that this left foot condition was related to the Veteran’s service because his STRs only documented a corn on the fourth toe of the foot in July of 1984 and he did not have a corn at present. Initially, and in this regard, the Board notes that this in-service left foot complaint occurred in his dishonorable period of service. The examiner did not address the Veteran’s contentions regarding his road marches and his belief that his left foot pain stems from those road marches or consider whether the Veteran’s reports of his in-service marches are consistent with his current diagnosis. The examiner additionally did not specify whether the opinion provided related to each diagnosis provided in the examination report and made no discussion of the Veteran’s specific diagnoses in the provided opinion. The Board thus finds that the medical evidence of record is inadequate as the nature, extent, and etiology of the Veteran’s left foot disability has not been adequately addressed by a VA examiner. Given the lack of adequate medical evidence to make a decision on this matter, the Veteran should be afforded another VA examination to address the nature, extent, and etiology of this disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any disability manifested by the loss of sense of smell and any disability manifested by the loss of sense of taste he may have. The examiner should have access to, and an opportunity to review, the Veteran’s claims file in conjunction with the examination. All necessary testing should be completed. Following review of the claims folder, and an interview with and examination of the Veteran, the examiner should: a. Identify/diagnose any disability manifested by the loss of sense of smell and any disability manifested by the loss of sense of taste that presently exists or that has existed during the appeal period. b. Opine whether it is as likely as not (a 50 percent probability or greater) that any such diagnosed disability manifested by the loss of sense of smell and disability manifested by the loss of sense of taste onset in the Veteran’s service or is otherwise etiologically related to such service. In expressing these etiological opinions, the examiner should address the Veteran’s contention that these disabilities are related to the August 1978 documented in-service assault to his face and head. 2. Also, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any sleep disorder he may have. The examiner should have access to, and an opportunity to review, the Veteran’s claims file in conjunction with the examination. All necessary testing should be completed. Following review of the claims folder, and an interview with and examination of the Veteran, the examiner should: a. Identify/diagnose any sleep disorder that presently exists or that has existed during the appeal period, to include the diagnoses of sleep apnea and sleep onset and maintenance insomnia with daytime hypersomnolence contained within his VA treatment records. b. Opine whether it is as likely as not (a 50 percent probability or greater) that any such diagnosed sleep disorder onset in the Veteran’s service or is otherwise etiologically related to such service. In expressing these etiological opinions, the examiner should address the Veteran’s contention that his sleep disorder began during his earlier period of honorable service. 3. Also, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and etiology of any left knee disability, lumbar spine disability, and left foot disability he may have. The examiner should have access to, and an opportunity to review, the Veteran’s claims file in conjunction with the examination. All necessary testing should be completed. Following review of the claims folder, and an interview with and examination of the Veteran, the examiner should: a. Identify/diagnose any left knee disability, lumbar spine disability, and left foot disability that presently exists or that has existed during the appeal period. b. Opine whether it is as likely as not (a 50 percent probability or greater) that any such diagnosed left knee disability, lumbar spine disability, and left foot disability onset in the Veteran’s service or is otherwise etiologically related to such service. In expressing these etiological opinions, the examiner should address the Veteran’s contentions that these disabilities are related to his in-service road marches and that he has experienced pain in these joints since service. 4. These examiners are advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion requested herein. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner(s) is (are) unable to provide an opinion, he or she should explain why. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.