Citation Nr: 21028382 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-38 395 DATE: May 11, 2021 ORDER Entitlement to a compensable evaluation for bilateral haring loss prior to April 16, 2018 is denied. Entitlement to a 10 percent evaluation, but no higher, for bilateral hearing loss is granted effective April 16, 2018, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for an upper back disorder is remanded. Entitlement to service connection for a status post closed fracture of the midshaft of the left clavicle, claimed as the left collarbone, is remanded. FINDINGS OF FACT 1. For the period prior to April 16, 2018, at worst, the Veteran had Level II hearing in his right ear and Level II hearing in his left ear. 2. For the period after April 16, 2018, at worst, the Veteran had Level V hearing in his right ear and Level IV hearing in his left ear. CONCLUSIONS OF LAW 1. For the period prior to April 16, 2018, the criteria for a compensable evaluation, for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 2. For the period after April 16, 2018, the criteria for a 10 percent evaluation, but no higher, for bilateral hearing loss have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from November 1966 to November 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, June 2020, and January 2021, the claims were remanded for further development. Specifically, the Board directed the RO to receive authorization from the Veteran to obtain relevant outstanding private treatment records, or obtain outstanding records from the Veteran. After several requests sent by the RO, the Veteran has not submitted the records or submitted an authorization giving VA permission to obtain the records. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Therefore, the RO has substantially complied with the Board's June 2019, June 2020, and January 2021Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The Board acknowledges that in the January 2019 Board hearing, the Veteran testified that he believes his hearing is worse than reflected in the noncompensable rating he was awarded; however, the Veteran did not assert a worsening of his symptoms triggering a need for an additional VA examination under Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Rather, he merely asserted that he believes his disability warrants a compensable rating. Thus, an additional examination related to the Veteran's increased rating claim for bilateral hearing loss is not warranted and VA's duty to assist has been met for the claim. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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 evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case, the now-assigned compensable evaluation, but no higher, is warranted based on the evidence. 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 seeks a compensable evaluation for his service-connected bilateral hearing loss. He is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Entitlement to a compensable evaluation for bilateral haring loss prior to April 16, 2018 is denied. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a compensable evaluation for bilateral hearing loss prior to April 16, 2018 is not warranted. A September 2013 VA examination reveals that the Veteran reported he is unable to hear well. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: September 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 55 65 60 52.5 90% LEFT 25 50 70 70 53.75 90% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A March 2015 private audiogram reveals that the Veteran reported he is unable to hear well. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: March 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 55 65 70 55 88% LEFT 25 55 70 85 58.75 92% It is unclear if the Maryland CNC testing method was used. Therefore, the audiometric evaluation is not adequate for rating purposes under § 4.85(a). However, even assuming that the Maryland Speech Recognition Test was utilized, applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Therefore, a higher rating would not be warranted. Based on the evidence above, a compensable evaluation for the Veteran's bilateral hearing loss is not warranted prior to April 16, 2018. The Board has considered the Veteran's statements regarding his diminished hearing, including that it affects him every day in his communication with his family members and others around the house and he feels that he is missing out on other things that could be relevant to his life. Additionally, it has considered the Veteran's statement that his hearing loss is severe enough for the use of hearing aids. Lastly, the Board has considered the Veteran's assertion that he cannot hear directions, must have the television loud to hear, and has difficultly hearing in noisy environments, in group situations, and from a distance. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, as noted above, a compensable evaluation prior to April 16, 2018 is not warranted and the current rating for that period is consistent with the mechanical application of the rating schedule to the numeric designations assigned based on the audiometric evaluation performed. Additionally, a noncompensable evaluation for this period is based on the current VA law and regulations in effect for evaluating this disability. Based on the foregoing, the Board finds that the evidence does not support the assignment of a compensable evaluation for bilateral hearing loss prior to April 16, 2018. Entitlement to a 10 percent evaluation, but no higher, for bilateral hearing loss is granted effective April 16, 2018, subject to the laws and regulations governing the payment of monetary benefits. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a 10 percent evaluation is warranted for bilateral hearing loss for the period on and after April 16, 2018. An April 2018 VA examination reveals that the Veteran reported he can't hear directions and the television, to the point that he has to have it "too loud." 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: April 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 65 70 75 62.5 72% LEFT 50 65 80 90 71.25 80% Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a 10 percent rating for the Veteran's bilateral hearing loss is warranted for the period beginning on April 16, 2018 (the date of the VA examination showing an increase in severity). The Board has considered the Veteran's statements regarding his diminished hearing, including that it affects him every day in his communication with his family members and others around the house and he feels that he is missing out on other things that could be relevant to his life. Additionally, it has considered the Veteran's statement that his hearing loss is severe enough for the use of hearing aids. Lastly, the Board has considered the Veteran's assertion that he cannot hear directions, must have the television loud to hear, and has difficultly hearing in noisy environments, in group situations, and from a distance. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, as noted above, a 10 percent rating, but no higher, is warranted for the period on and after April 16, 2018 and consistent with the mechanical application of the rating schedule to the numeric designations assigned based on the audiometric evaluation performed. Additionally, the 10 percent evaluation is based on the current VA law and regulations in effect for evaluating this disability. Based on the foregoing, the Board finds that the evidence supports the assignment of a 10 percent evaluation, but no higher, for bilateral hearing loss for the period beginning on April 16, 2018, and the claim is granted to this extent. REASONS FOR REMAND While the Board regrets further delay in the decision of the below claims, remand is necessary for an adequate VA examination and medical opinion. Because the claims are being remanded for further developmental purposes, the Board will afford the Veteran another opportunity to submit private treatment records or submit an authorization allowing the RO to attempt to obtain them. Entitlement to service connection for an upper back disorder is remanded. The Veteran has asserted that his upper back disorder and pain began in service and has continued since that time. The Board notes that numerous treatment records show the Veteran has been evaluated and treated for back pain, including upper back pain. See June 2016 and July 2019 VA treatment record. See also September 2015 that notes pain in his upper back behind his neck with positional numbness to hands while laying on 8 pillows. A November 2012 imaging test shows T-12 to L1 is normal. However, a February 2013 imaging record shows a disc bulge with effacement of the anterior thecal sac at C7/T1 of the spine but shows normal disc at T12/L1. Ultimately, he was found to have multilevel degenerative changes in his spine. In December 2019, the Veteran underwent a VA examination in connection with the claim. The examiner found he had not been diagnosed with a thoracolumbar spine condition. He noted that the Veteran stated he injured his back in service but there was no specific injury. Further, he indicated that the Veteran did not report flareups or have functional loss or impairment of the thoracolumbar spine. He also noted the Veteran had a normal range of motion and no pain on examination. He noted that imaging studies of the thoracolumbar spine had not been performed; thus, there were no available results. The examiner opined that it is less likely than not the Veteran's claimed condition was incurred in or caused by his military service. He found the injury was acute and there was no chronicity of care shown in treatment records. Therefore, no nexus can be established. The Board finds this VA examination to be inadequate as it is based on an inaccurate factual basis and without consideration of the Veteran's specific assertions, including details about his in-service injury. The examiner noted there were no specific injuries in service. However, during the January 2019 Board hearing the Veteran testified that he hurt his back when he slipped on ice and fell landing on his shoulders and back, and breaking his collarbone. He also stated that his training as military police contributed to his upper back condition or caused it to be reinjured. Lastly, he indicated that he had back pain in service that has continued since that time. Therefore, remand is necessary for another VA examination and medical opinion. Entitlement to service connection for a status post closed fracture of the midshaft of the left clavicle, claimed as the left collarbone, is remanded. The Veteran has asserted that he has chronic collarbone pain that began in service and has continued. See November 2013 notice of disagreement, and January 2019 Board hearing transcript. In an August 2016 statement, the Veteran indicated that following his injury, he went back for treatment and his medication was doubled. Although the pain continued, he stopped seeking medical treatment because drinking a beer had the same effect or provided the same relief as the pain medication. In his July 2016 VA Form 9, the Veteran indicated that the pain he felt in service after fracturing his collarbone is the same that he feels to the present day. He stated that, although records do not show he continued treatment for the pain, he still had pain but did not want to continue taking pain medications for his condition because he was fearful of the consequences. He notes that his collarbone was likely reinjured when he fell escorting a trustee to the hospital and from training in service. A January 2013 treatment records shows the Veteran experienced pain in neck and shoulders. See also June 2013 record that notes chronic back pain. A February 2013 treatment records reveals the Veteran experienced spinal pain that radiated into his left upper extremity, including an electrical shock feeling to his forearms with certain movements in his neck. A December 2019 VA examiner notes that the Veteran's collarbone injury is resolved. While he noted the Veteran experiences intermittent left shoulder pain, it is noted that he has normal range of motion and had no pain on examination. Ultimately, the examiner opined that it is less likely than not the Veteran's claimed disorder was incurred in or caused by service or an event therein. The opinion is based on the lack of treatment to show chronicity. The Board finds the examination is inadequate as the examiner did not address the Veteran's assertions. Moreover, various VA treatment records show that the Veteran experiences intermittent pain in his shoulders and chronic pain in his neck. While the records fall short of providing a nexus opinion, they note the Veteran's injury in service. The records also reflect spinal stenosis in the cervical spine, which may include the clavicle area. Therefore, remand is necessary for another VA examination and medical opinion. The Board also finds the claim is inextricably intertwined with the service connection claim for an upper back disorder. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any upper back disorder that may be present, to include arthritis. A copy of this remand should be provided to the examiner. The examiner is requested to review all pertinent records associated with the claims file. The examiner should opine as to whether it is at least as likely (50 percent or greater probability) as not the Veteran has a current upper back disorder (to include arthritis) that is related to his military service, including any injury or symptomatology therein. The examiner should specifically consider the Veteran's assertion that he has asserted that he has an upper back disorder and pain that began in service that has continued since that time. The Veteran also testified at a Board hearing that he hurt is back when he slipped on ice and fell landing on his shoulders and back, and breaking his collarbone. He also stated that his training as military police contributed to his upper back condition or caused it to be reinjured. (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 conclusion as it is to find against it.) The examiner should note the Veteran is competent to attest to factual 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 Veteran, the examiner should provide a fully reasoned explanation. 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. 2. Scheduled the Veteran for a VA examination to determine the nature and etiology of any status post closed fracture of the midshaft of the left clavicle disorder that may be present. A copy of this remand should be provided to the examiner. The examiner is requested to review all pertinent records associated with the claims file. The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a current status post closed fracture of the midshaft of the left clavicle disorder that is related to his military service, including any injury or symptomatology therein. The examiner should specifically consider the Veteran's assertion that has chronic collarbone pain that began in service and has continued. See November 2013 notice of disagreement. In an August 2016 statement, the he went back for treatment and the pain continued, but he stopped seeking medical treatment because drinking a beer had the same effect or provided the same relief as the pain medication. In his July 2016 VA Form 9, the Veteran also stated that the pain he felt in service after fracturing his collarbone is the same that he feels to present day. He indicated that although records do not show he continued treatment for the pain, he stated that he did not want to continue taking pain medications for his condition because he was fearful of the consequences. He notes that his collarbone was likely reinjured when he fell escorting a trustee to the hospital and from training in service. (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 conclusion as it is to find against it.) The examiner should note the Veteran is competent to attest to factual 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 Veteran, the examiner should provide a fully reasoned explanation. 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. Because it is important "that each disability is viewed about its history" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.