Citation Nr: 21023154 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-49 874A DATE: April 20, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to March 27, 2018 is denied. Evaluation in excess of 10 percent for bilateral hearing loss from March 27, 2018 to November 18, 2020 is denied. Evaluation in excess of 60 percent for bilateral hearing loss from November 19, 2020 onwards is denied. REMANDED Entitlement to service connection for a heart condition, to include as due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral hearing loss manifests no worse than Level II hearing loss in the right ear and Level IV hearing loss in the left ear prior to March 27, 2018. 2. The Veteran’s bilateral hearing loss manifests no worse than Level IV hearing loss in the right ear and Level III hearing loss in the left ear from March 27, 2018 to November 18, 2020. 3. The Veteran’s bilateral hearing loss manifests no worse than Level X hearing loss in the right ear and Level VIII hearing loss in the left ear from November 19, 2020 onwards. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to March 27, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an evaluation in excess of 10 percent for bilateral hearing loss from March 27, 2018 to November 18, 2020 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for an evaluation in excess of 60 percent for bilateral hearing loss from November 19, 2020 onwards have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S Army from November 1961 to October 1963. This matter comes before the Board of Veterans Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in September 2019 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In September 2019, the Board also remanded the issue of service connection for right forearm post-surgery residuals. In a December 2020 rating decision, the RO granted service connection for right forearm residuals, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. Increased Ratings Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable rating for bilateral hearing loss prior to March 27, 2018 2. Evaluation in excess of 10 percent for bilateral hearing loss from March 27, 2018 to November 18, 2020 3. Evaluation in excess of 60 percent for bilateral hearing loss from November 19, 2020 onwards Service connection for bilateral hearing loss was granted in a July 2014 rating decision, and a noncompensable disability rating was assigned, effective November 6, 2012. In March 2015, the Veteran filed a Notice of Disagreement his bilateral hearing loss disability. In an April 2018 rating decision, the Veteran’s hearing loss was increased to 10 percent, effective March 27, 2018. A December 2020 rating decision assigned a 60 percent rating effective November 19, 2020. VA disability compensation for impaired hearing is derived from the application in sequence of two tables. See 38 C.F.R. § 4.85 (h), Table VI and Table VII. Table VI correlates the average pure tone sensitivity threshold, derived from the sum of the 1000, 2000, 3000, and 4000 Hertz (Hz) thresholds divided by four, with the ability to discriminate speech, providing a Roman numeral to represent the correlation. Each Roman numeral corresponds to a range of thresholds in decibels and of speech discriminations in percentages. The table is applied separately for each ear to derive the values used in Table VII. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hz is 55 decibels or more, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIa, whichever results in a higher number. Each ear is evaluated separately. 38 C.F.R. § 4.86 (a). When the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86 (b). In June 2014, the Veteran underwent a VA audiological examination. On the authorized audiological testing, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 60 60 55 LEFT 35 45 60 60 55 The average puretone threshold for the relevant frequencies was 54 in the right ear and 55 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and of 80 percent in the left ear. The examiner reported that the Veteran’s hearing disability impacted his ability to understand what is said. In March 2018, the Veteran underwent another VA audiological examination. On the authorized audiological testing, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 50 65 75 75 LEFT 25 30 60 70 75 The average puretone threshold for the relevant frequencies was 66 in the right ear and 59 in the left ear. Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 84 percent in the left ear. The examiner reported that the Veteran’s hearing disability caused the Veteran difficulty understanding what others are saying, and that he often needed people to repeat themselves. In November 2020, the Veteran underwent another VA audiological examination. On the authorized audiological testing, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 75 80 100 105+ 105+ LEFT 70 80 95 105 105 The average puretone threshold for the relevant frequencies was 97.5 in the right ear and 96.25 in the left ear. Speech audiometry revealed speech recognition ability of 48 percent in the right ear and of 52 percent in the left ear. The examiner reported that the Veteran’s hearing disability caused the Veteran difficulty understanding what others are saying, and that he often needed people to repeat themselves. The audiometric results of the June 2014 VA audiogram result in Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear. With such findings, the point of intersection on Table VII requires the assignment of a noncompensable evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85. The results of the March 2018 VA audiogram show Level IV hearing acuity in the right ear and Level III hearing acuity in the left ear. With such findings, the point of intersection on Table VII requires the assignment of a 10 percent evaluation under Diagnostic Code 6100. The audiometric results of the November 2020 VA audiogram result in Level X hearing acuity in the right ear and Level VIII hearing acuity in the left ear. With such findings, the point of intersection on Table VII requires the assignment of a 60 percent rating under Diagnostic Code 6100. After review of the evidence of record, there is no evidence that would warrant an increased rating for the Veteran’s bilateral hearing loss during the rating period on appeal. 38 U.S.C. § 5110; see also Hart, 21 Vet. App. 505. The evidence shows distinct periods of time during which the Veteran’s bilateral hearing loss has varied to such an extent that staged ratings are warranted. Cf. 38 C.F.R. § 3.344 (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations). The assignment of disability evaluations for hearing impairment is a purely mechanical application of the rating criteria from which the Board cannot deviate. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); see also Massey v. Brown, 7 Vet. App. 204, 208 (1994) (finding the Board may only consider the specific factors as are enumerated in the applicable rating criteria). The Board is sympathetic to the Veteran’s complaints related to his hearing loss, but finds that there is no basis for granting a compensable rating prior to March 27, 2018; a rating in excess of 10 percent from March 27, 2018 to November 18, 2020; and a rating in excess of 60 percent from November 19, 2020 onwards. The rating criteria contemplates the symptomatology of record. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.7, 4.21. REASONS FOR REMAND Entitlement to service connection for a heart condition, to include as due to service-connected disabilities is remanded. The Veteran, through his representative, contends his heart condition is secondary to his service-connected disabilities. See Appellate Brief, received February 2021. The Veteran has not been afforded a VA examination for secondary service connection. Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Accordingly, remand is required. The matters are REMANDED for the following action: Obtain an addendum opinion to determine the nature and etiology of the Veteran’s heart condition. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: (a) Whether it is at least as likely as not (a 50 percent probability or greater) that his heart condition was incurred in, aggravated by, or etiologically related to his military service. (b) Whether it is at least as likely as not (a 50 percent probability or greater) that his heart condition was caused or aggravated by his service-connected disabilities. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. (Continued on the next page)   A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.