Citation Nr: 21028565 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-58 176 DATE: May 11, 2021 ORDER An initial compensable rating for hearing loss is denied. REMANDED Service connection for an acid reflux disorder. Service connection for a colon disorder. Service connection for a stomach disorder. Service connection for a skin disorder. FINDING OF FACT The Veteran's hearing loss has manifested by no worse than level I hearing loss in his right ear, and no worse than level IV hearing loss in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to May 1968. The case is on appeal from an April 2015 rating decision. The case was previously before the Board in March 2019, and the issues were remanded for additional development and for VA examinations. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial compensable rating for hearing loss. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Specific Legal Criteria Disability evaluations for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examinations are conducted using the controlled speech discrimination tests together with the results of the pure tone audiometry test. See 38 C.F.R. § 4.85. The results are analyzed using tables contained in 38 C.F.R. § 4.85, DC 6100. The rating schedule for hearing loss provides that evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second (Hertz). To evaluate the degree of disability from defective hearing, the rating schedule established eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. 38 C.F.R. § 4.86(a) provides that when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Analysis The Veteran maintains that he is entitled to a compensable rating for his service-connected hearing loss. He reports that his hearing loss is significant in both ears, and that without hearing aids, he cannot understand what others say. See December 2019 VA examination. The appeal period now before the Board begins in September 2014, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran was first afforded a VA audiological examination in January 2015. He described the impact of his hearing loss as not being able to understand what was being said unless he was looking at the person, and that words were not clear anymore. The examiner reported the following pure tone thresholds, in decibels, utilizing the Maryland CNC test: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 30 35 40 45 37.50 LEFT 25 70 65 60 55.00 The average pure tone threshold was 37.50 in the right ear and 55.00 in the left ear. Speech discrimination tests revealed scores of 94 percent in both the right ear and left ear. The January 2015 audiometric results correspond to level I hearing in the right ear, and level IV hearing in the left ear for exceptional patterns of hearing impairment. 38 C.F.R. §§ 4.85, 4.86, DC 6100. When combined, the results reflect a noncompensable disabling evaluation for the Veteran's hearing loss. Id. The Veteran underwent a second VA examination in September 2016. The following pure tone thresholds were reported: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 25 30 40 55 37.50 LEFT 20 45 40 40 36.25 The average pure tone threshold remained 37.50 in the right ear, but dropped to 36.25 in the left ear. Speech discrimination showed scores of 96 percent in both ears. The results of the September 2016 audiogram correspond to level I hearing loss in both the right and left ears, and when combined, continue to reflect a noncompensable disabling evaluation for the Veteran's hearing loss. Id. Following the Board's March 2019 remand, the Veteran underwent a new examination in December 2019. The Veteran reported at that time that, without hearing aids, he could not understand others. The examiner found the following pure tone thresholds, in decibels: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Average RIGHT 35 45 45 60 46.25 LEFT 40 70 75 80 66.25 The average pure tone threshold was 46.25 in the right ear and 66.25 in the left ear. Speech discrimination revealed scores of 96 percent in the right ear and 84 percent in the left ear. The results correspond to level I hearing in the right ear, and level III hearing in the left ear; when combined, the results continue to reflect a noncompensable disabling evaluation for the Veteran's hearing loss. Id. The Board finds a compensable rating for this disability is not warranted at any point during the appeal. Although the Veteran contends that his hearing loss should be rated at a compensable level, the applicable mechanical hearing tests of record shows that his hearing loss is correctly evaluated as noncompensable disabling. At most, the Veteran's hearing loss has manifested by no worse than level I hearing loss in his right ear, and no worse than level IV hearing loss in his left ear. The Board has considered the benefit-of-the-doubt rule. However, because the preponderance of the evidence does not show that the Veteran experienced a compensable level of hearing loss at any time during the appeal period, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, an initial compensable rating for hearing loss is not warranted REASONS FOR REMAND 1. Service connection for an acid reflux disorder. 2. Service connection for a colon disorder. 3. Service connection for a stomach disorder. The Veteran contends that he has ongoing digestive issues which began during service, including problems with his stomach, irritable bowel syndrome (IBS), and acid reflux. He maintains that prior to service he never experienced digestive troubles, but after going out to sea on a Navy destroyer ship, he battled constant seasickness with an upset stomach, vomiting five to six times per day, and not being able to eat or drink anything leading to weight loss. The Veteran's service treatment records (STRs) include a sick call entry of "trouble with vomiting" in May 1967. His post-service medical records indicate treatment for a sour stomach, a knot in the epigastric area, heartburn, and vomiting as early as September 1971. The list of the Veteran's diagnoses includes IBS, gastroesophageal reflux disease (GERD), dysphagia, constipation, helicobacter pylori infection, and disease of the stomach and duodenum, unspecified. In March 2019, the Board remanded these issues for a VA examination by a gastroenterologist to determine the nature and etiology of any stomach, colon, or acid reflux disorder, with review of the file and consideration of the Veteran's lay statements of in-service experiences. The Veteran was afforded a VA examination in December 2019, conducted by a general physician assistant (PA). She opined that the Veteran's acid reflux, IBS, and stomach issues were less likely than not incurred in or caused by an in-service injury, event, or illness. As rationale, the PA stated that there was no documentation of complaints consistent with acid reflux or IBS in the STRs, and a recent exam with biopsy of the stomach was normal. The Board finds another remand is warranted, as there was not substantial compliance with the Board's remand directives, and a new VA examination with a medical opinion is warranted. See Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). The March 2019 remand instructions requested a VA examination by a gastroenterologist; however, the December 2019 examination was conducted by a PA that does not appear to be specialized, or have the scope of credentials or training in internal medicine that would meet substantial compliance with the remand directive necessary for Stegall. It also does not appear that the examiner fully considered the Veteran's lay statements of in-service digestive symptoms and that he was often denied treatment, or the September 1971 treatment of digestive problems three year after service that are not associated with seasickness. Further, the December 2019 examiner did not note the June 2019 diagnosis of disease of stomach and duodenum, unspecified. In light of the remand, updated VA treatment records should be obtained. 4. Service connection for a skin disorder. The Veteran's medical records show a history of undergoing procedures to remove melanoma from the face and neck area. The Veteran claims this has resulted in scarring, and that he is still having "precancerous [skin] removed from my face." He contends that the discoloration of his skin in those areas was visible on his face prior to his departure from service. See Veteran's November 2016 Form 9 and April 2015 NOD. In the March 2019 Board remand, it was noted that the record indicates that the Veteran had melanoma removed at the UT Southwestern Medical Center, but that those medical records had not been associated with the claims file and should be requested. The Board observes that the regional office requested authorization from the Veteran to obtain those records, along with any other identified private treatment providers, in October 2019. However, the Veteran failed to respond or return any forms for that request. The Board finds that a remand is also warranted for the claim of service connection for a skin disorder. While the March 2019 remand instruction requested an examination by a dermatologist, he was provided a VA examination in December 2019 by a PA that does not appear to be specialized, or have the scope of credentials or training in dermatology, that would meet substantial compliance with the remand directive necessary for Stegall. 11 Vet. App at 271; D'Aries, 22 Vet. App. at 105. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records dated since November 2019. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by a gastroenterologist, or other internal medical specialist familiar with digestive issues, to determine the nature and etiology of any stomach, colon, or acid reflux disorder. The record, including a complete copy of this remand and the March 2019 remand, should be made available for review. (a) First, the examiner should identify the Veteran's current disorder(s) involving the digestive system in regard to the stomach, colon, and acid reflux disorder claims. (b) The examiner should then opine whether it is at least as likely as not (50 percent probability or greater) that any identified digestive disorder had its onset during, or is otherwise related to, the Veteran's service. Consideration should be given to, and the examiner is requested to comment on: (1) the Veteran's lay statements of in-service experiences to include symptoms and refusal to treat him; and (2) the September 1971 treatment of digestive symptoms following service. The examiner should provide rationale for all opinions expressed, including by citing to the record. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by a dermatologist to determine the nature and etiology of any skin disorder to include melanoma and associated scarring. The record, including a complete copy of this remand and the March 2019 remand, should be made available for review. (a) First, the examiner should determine whether the Veteran has any current skin disorder, to include melanoma and scarring. (b) The examiner should then opine whether it is at least as likely as not (a 50 percent or greater probability) that any determined skin disorder had onset during, or is otherwise related to, active service. Consideration should be given to, and the examiner is requested to comment on the Veteran's statement that he had discoloration of his skin that was visible on his face prior to his departure from service. The examiner should provide rationale for all opinions expressed, including by citing to the record. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.