Citation Nr: 21028622 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-30 891 DATE: May 11, 2021 ORDER Entitlement to a compensable rating for left ear hearing loss prior to February 11, 2021, is denied. Entitlement to a rating in excess of 10 percent for bilateral hearing loss beginning February 11, 2021, is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee disability is remanded. FINDINGS OF FACT 1. The Veteran's hearing has been manifested by hearing acuity of no worse than Level I in the left ear prior to February 11, 2021. 2. The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level II in the left ear beginning February 11, 2021. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for left ear hearing loss prior to February 11, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss beginning February 11, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the Army National Guard, with periods of active duty from June 1989 to November 1989, January 1999 to June 1999, February 2003 to June 2004, June 2005 to October 2006, January 2009 to April 2010, and June 2014 to June 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). These matters were previously before the Board in March 2019 and August 2020. Most recently, the Board reopened a claim of service connection for right ear hearing loss and remanded the underlying claim for development and adjudication. In a February 2021 rating decision, service connection for the right ear was granted, and so the evaluation question is recharacterized as one involving a bilateral disability as of February 11, 2021. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. The AOJ provided appropriate notice in March 2013. The AOJ associated the Veteran's service records as well as VA treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. The AOJ obtained appropriate and necessary examinations for Veteran, and the examinations are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating for Hearing Loss Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. "Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings." Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citation omitted). VA accordingly concentrates on the evidence that establishes the state of the veteran's disability in the period one year before the veteran files his claim through the date VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). 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). If impaired hearing is service connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385. See 38 C.F.R. § 3.383. This does not apply if the non-service-connected hearing loss is the result of the Veteran's willful misconduct. Id. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Level I designation for hearing impairment, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). Left ear hearing loss prior to February 11, 2021 The Veteran contends that he is entitled to a compensable rating for left ear hearing loss, including in the period prior to February 11, 2021 (the effective date at which service connection for right ear hearing loss was granted). As an initial matter, the Board notes that the claims file contains multiple National Guard evaluations with pure tone threshold results. These evaluations did not utilize a speech discrimination test, however. For this reason, the National Guard evaluations have not been considered. On the authorized VA audiological evaluation in July 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 20 10 5 15 20 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz for the left ear was 13 decibels. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. These findings do not qualify as an exceptional pattern of hearing impairment and translate to Level I hearing impairment under Table VI for the left ear. Pursuant to 38 C.F.R. § 4.85(f), the hearing in the non-service-connected ear is assigned a Level I designation. Two Level I hearing-impairment designations are considered noncompensably disabling. 38 C.F.R. § 4.85, Diagnostic Code 6100. Thus, the results of the July 2013 VA examination do not warrant a compensable rating for the Veteran's left ear hearing loss. In an authorized VA audiological evaluation in July 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT LEFT 25 20 20 25 25 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz for the left ear was 23 decibels. Speech audiometry revealed speech recognition ability of 94 percent in the left ear. These findings do not qualify as an exceptional pattern of hearing impairment and translate to Level I hearing impairment under Table VI for the left ear. Pursuant to 38 C.F.R. § 4.85(f), the hearing in the non-service-connected ear is assigned a Level I designation. Two Level I hearing-impairment designations are considered noncompensably disabling. 38 C.F.R. § 4.85, Diagnostic Code 6100. The results of the July 2015 VA examination therefore do not warrant a compensable rating for the Veteran's left ear hearing loss. Considering the results of these VA examinations, the Board finds that a compensable rating for the Veteran's left ear hearing loss prior to February 11, 2021, is not appropriate. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's statements regarding difficulty hearing people (July 2013 VA examination) and asking people to repeat themselves (May 2014 Decision Review Officer hearing). 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 considered by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which the assigned rating contemplates. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the evidence is against the claim of entitlement to a compensable rating for left ear hearing loss prior to February 11, 2021. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral hearing loss beginning February 11, 2021 The AOJ granted service connection for right ear hearing loss effective February 11, 2021, in a February 2021 rating decision. Although the Veteran has not appealed that service connection claim to the Board, bilateral hearing loss is now considered as of February 11, 2021, because the issue of entitlement to an increased rating for left ear hearing loss, which is before the Board, considers hearing levels in both ears to determine the appropriate rating. See 38 C.F.R. § 4.85. Thus, the Veteran contends that he is entitled to a higher rating for bilateral hearing loss beginning February 11, 2021. An authorized VA audiological evaluation in February 2021, noted pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 35 30 40 LEFT 25 25 25 35 45 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 31 decibels in the right ear and 33 decibels in the left ear. Speech audiometry revealed speech recognition ability of 64 percent in the right ear and 84 percent in the left ear. These findings do not qualify as an exceptional pattern of hearing impairment. Under Table VI, the February 2021 findings yield a numeric designation of Level V in the right ear and Level II in the left ear. Combining Level V and Level II hearing-impairment designations results in a 10 percent disability rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. The results of the February 2021 VA examination therefore correspond to a 10 percent rating for bilateral hearing loss. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's statement at the February 2021 VA examination regarding difficulty hearing and asking others to repeat themselves. 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 considered by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which the assigned rating contemplates. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the evidence is against the claim of entitlement to a rating in excess of 10 percent for bilateral hearing loss beginning February 11, 2021. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Remand is necessary to obtain an additional VA medical opinion regarding the right knee. The August 2020 Board remand directed the AOJ to obtain a VA retrospective opinion regarding the Veteran's right knee. This retrospective opinion needed to address "the frequency, duration, characteristics, severity, and functional loss during periods of flare ups" from September 25, 2011, to the present. An October 2020 VA examination stated that "The documentation does not indicate significant right knee disability from 9/25/11 onward. No significant functional loss could be ascertained from the documentation provided." Functional loss is documented in the medical evidence, such as in July 2013 and July 2015 VA examinations that noted pain and swelling with running as well as needing a step ladder to get in and out of aircraft. Moreover, the VA examination did not address the frequency, duration, characteristics, and severity of flare ups. Accordingly, an additional VA medical opinion is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, although the prior Board remand requested an opinion from September 25, 2011, the potential period on appeal begins April 26, 2011, one year prior to the April 2012 informal claim. See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The matter is REMANDED for the following action: 1. Obtain a retrospective opinion from an appropriate clinician for the Veteran's right knee disability. The opinion should cover the period from April 26, 2011, to present. It must address the frequency, duration, characteristics, and severity of flare ups as well as the functional loss during flare ups. The clinician should describe the additional loss in degrees, if possible. In rendering the requested retrospective opinion, the clinician should derive their estimate from relevant sources within the claims file, including treatment records and lay statements of the Veteran. If the clinician determines that an examination is required to provide the requested opinion, an appropriate examination should be scheduled. 2. Then, readjudicate the claim. If the benefit sought remains denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.