Citation Nr: 21026457 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-27 083 DATE: May 3, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a dental condition, to include tooth and gum disabilities, for treatment purposes only, is remanded. FINDING OF FACT The Veteran has Level I hearing in his right ear and Level I hearing in his left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1981 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge in March 2019. A transcript of that hearing has been associated with the claims file. The Board remanded the claims for further development in September 2019. That development has been completed, and the case has since been returned to the Board for appellate review. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist as to the issue being decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that the Veteran in this case is appealing the initial assignment of a disability rating for his hearing loss, and as such, the severity of that disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's bilateral hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. In evaluating service-connected hearing loss, disability ratings are derived by 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). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. For example, if the better ear had a numeric designation of Level "V" and the poorer ear had a numeric designation of Level "VII" the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that when the puretone threshold is 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. In considering the evidence of record under the laws and regulations as set forth below, the Board finds that the Veteran is not entitled to an increased evaluation for his service-connected bilateral hearing loss. During a VA examination in October 2016, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 25 65 LEFT 15 15 15 25 40 The puretone threshold average at 1000, 2000, 3000, and 4000 Hertz was 29 decibels in the right ear and 24 decibels in the left ear. The Maryland CNC controlled speech discrimination test revealed speech recognition of 100 percent bilaterally. Using Table VI, these audiometric findings equate to Level I hearing in the right ear and Level I hearing in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, the evaluation for hearing loss is noncompensable under the provisions of 38 C.F.R. § 4.85. The Veteran was then afforded a VA examination in September 2020 and testing results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 55 65 LEFT 20 25 20 30 45 The puretone threshold average at 1000, 2000, 3000, and 4000 Hertz was 39 decibels in the right ear and 30 decibels in the left ear. The Maryland CNC controlled speech discrimination test revealed speech recognition of 96 percent in the right ear and 100 percent in the left ear. Using Table VI, these audiometric findings equate to Level I hearing in the right ear and Level I hearing in the left ear. See 38 C.F.R. § 4.85, Table VI. When those values are applied to Table VII, the evaluation for hearing loss is noncompensable under the provisions of 38 C.F.R. § 4.85. The Board has also considered whether an initial compensable evaluation for bilateral hearing loss is warranted under 38 C.F.R. § 4.86. However, the Veteran's disability does not meet the requirements of 38 C.F.R. § 4.86. In this regard, the available audiometric findings do not show that the Veteran has puretone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 hertz or a puretone threshold of 30 decibels or less at 1,000 hertz and 70 decibels or more at 2,000 hertz. Based on the foregoing, the results of the relevant audiological examinations show that the Veteran is not entitled to an initial compensable evaluation. The Board has also considered the Veteran's lay assertions regarding his diminished hearing. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations based on the audiology examination results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). It is clear from the Rating Schedule that a higher rating can be awarded only when loss of hearing has reached a specified measurable level. For these reasons, the Board finds that an initial compensable evaluation is not warranted. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (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). REASONS FOR REMAND The Board finds that a remand is necessary for the Veteran's left knee disorder claim in order to obtain another VA examination and medical opinion. The Veteran was afforded a VA examination in September 2020, wherein the examiner opined that the left knee was not related to military service. In support of that opinion, the examiner found no mention of a left knee disorder in service treatment records and cited to an October 2014 physical therapy note describing pain/injury to the left knee, due to overcompensation, following a 2013 right ankle fracture. However, the September 2020 VA examiner failed to adequately consider the Veteran's testimony that he had injured his left knee in service. In this regard, the Board notes that there are numerous medical records indicating that while the Veteran reported pain following a 2013 right ankle fracture, due to overcompensation, he was also consistently reporting a left knee disorder since service. The Board also notes that the Veteran reported left knee pain and occasional swelling since boot camp in an October 2012 VA medical record; a report predating the right ankle fracture. The Veteran's report of an in-service left knee injury was also noted in the October 2014 physical therapy record cited by the 2020 VA examiner. As such, it appears the September 2020 VA examiner based the opinion on an inaccurate factual premise and/or an incomplete reading of the medical evidence of record and another VA examination is required. The Board also finds that the Veteran's claims for service connection for a right and left hip disorder, a left foot disorder, and a back disorder are inextricably intertwined with the left knee claim being remanded herein, as the Veteran has claimed that these disorders are secondary to his left knee disorder. For this reason, the left knee claim must be resolved prior to resolution of the left and right hip, left foot, and back disorder claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the AOJ to adjudicate the inextricably intertwined issue. Additionally, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for a dental disorder for treatment purposes only. As such, another remand is required. Stegall, 11 Vet. App. at 271. The Board's previous remand specifically noted that a referral to the Veteran's Health Administration (VHA) was necessary to determine eligibility for VA dental treatment. The amended version of 38 C.F.R. § 3.381 clarifies that Veteran Benefits Administration (VBA) will adjudicate a claim for service connection of a dental disorder for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA determine the answers to relevant questions. 38 C.F.R. § 3.381 (a). There is no indication that the referral was ever made after the prior remand. Accordingly, the case is REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the Veteran's right and left hip disorders, left foot disorder, back disorder, and left knee disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. Refer the case to the appropriate location within VHA for a determination regarding the Veteran's basic eligibility for VA dental treatment. A copy of the resulting determination should be associated with the record. Then, conduct all development warranted by the VHA's finding. 3. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any left knee disorder that may be present. 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 the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a current left knee disorder that is causally or etiologically related to his military service, to include any injury or symptomatology therein. The examiner should specifically address the Veteran's testimony that he injured his left knee, to include a meniscus injury/tear, while in service, as well as the September 1981 service treatment record discussing a possible knee injury in his or her opinion. The examiner is also asked to address the diagnosis of osteoarthritis of the left knee that is of record in his or her opinion. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Rideout-Davidson, 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.