Citation Nr: 21029282 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-43 269 DATE: May 13, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a back disability is remanded. FINDING OF FACT The Veteran's bilateral hearing loss has manifested as hearing acuity of no worse than Level I bilaterally. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1988 until October 1994. In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was previously before the Board in October 2019. Subsequently, the agency of original jurisdiction (AOJ) granted service connection for PTSD with Major Depressive Disorder in an August 2020 rating decision. The grant of service connection for PTSD with Major Depressive Disorder is considered a full grant of the benefit sought for the claim of service connection for an acquired psychiatric disability. That issue is no longer before the Board. The Board finds there has been substantial compliance with its prior remand directives for the hearing loss claim and will proceed to adjudication. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a compensable rating for bilateral hearing loss In June 2015, the Veteran filed a claim asserting that his service-connected bilateral hearing loss has worsened such that a compensable rating is warranted. 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). The Veteran was provided with a VA examination in July 2014. Puretone thresholds were measured bilaterally. For the right ear, the thresholds were 20 decibels (dB) at 1000 Hertz (Hz), 20 dB at 2000 Hz, 45 db at 3000 Hz, and 40 dB at 4000 Hz. The average threshold for the right ear was 31 dB. For the left ear, the thresholds were 20 dB at 1000 Hz, 20 dB at 2000 Hz, 50 db at 3000 Hz, and 40 dB at 4000 Hz. The average threshold for the left ear was 33 dB. Speech discrimination scores using the Maryland CNC word list were also obtained and were 94 percent bilaterally. The Veteran described the functional impact of his hearing loss as impacting his relationships and daily life in that there are "a lot of arguments...because of miscommunication." On VA examination in August 2015, Puretone thresholds were measured bilaterally. For the right ear, the thresholds were 25 dB at 1000 Hz, 20 dB at 2000 Hz, 45 db at 3000 Hz, and 35 dB at 4000 Hz. The average threshold for the right ear was 31 dB. For the left ear, the thresholds were 30 dB at 1000 Hz, 25 dB at 2000 Hz, 55 db at 3000 Hz, and 40 dB at 4000 Hz. The average threshold for the left ear was 38 dB. Speech discrimination scores using the Maryland CNC word list were also obtained and were 94 percent bilaterally. The Veteran described the functional impact of his hearing loss as him being unable to discern certain things that reduce ability to maintain safety, occasional inability to understand instructions, impairment of relationships, and strained communication. In a March 2016 VA treatment note, the Veteran reported that it was harder for him to hear things. The Veteran submitted a private audiological examination conducted at TruEAR in Mount Dora, Florida in September 2018. For the left ear, the thresholds were 30 dB at 1000 Hz, 35 dB at 2000 Hz, 65 db at 3000 Hz, and 45 dB at 4,000 Hz. The average threshold for the left ear was 44 dB. For the right ear, the thresholds were 25 dB at 1000 Hz, 30 dB at 2000 Hz, 50 dB at 3000 Hz, and 35 dB at 4000 Hz. The average threshold for the left ear was 35 dB. The word recognition score was reported as 96 percent. However, the word list used for the speech discrimination test was not reported. Accordingly, this examination cannot be used for rating purposes. 38 C.F.R. § 4.85 (a). The Veteran reported worsened hearing at the July 2019 Board hearing. On VA examination in January 2020, Puretone thresholds were measured bilaterally. For the right ear, the thresholds were 25 dB at 1000 Hz, 30 dB at 2000 Hz, 45 db at 3000 Hz, and 40 dB at 4000 Hz. The average threshold for the right ear was 35 dB. For the left ear, the thresholds were 25 dB at 1000 Hz, 40 dB at 2000 Hz, 60 dB at 3000 Hz, and 55 dB at 4000 Hz. The average threshold for the left ear was 45 dB. Speech discrimination scores using the Maryland CNC word list were also obtained and were 94 percent bilaterally. The Veteran described the functional impact of his hearing loss as "interferes with everything." The Board finds that, based upon the probative evidence of record, a compensable rating for the Veteran's service-connected bilateral hearing loss is not warranted. Applying the results of each VA auditory examination to Table VI, the findings yield a numeric designation of no worse than Level I for both the right and left ears. 38 C.F.R. § 4.85 (h), Table VI. Entering the resulting bilateral numeric designation of Level I for each ear to 38 C.F.R. § 4.85 (h), Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown on any VA examination. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty with hearing and understanding conversations. 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). VA examinations have provided adequate descriptions of the functional effects of the Veteran's hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). 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, the preponderance of the evidence is against the claim of entitlement to a compensable rating for hearing loss. 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 1. Entitlement to service connection for a back disability is remanded. The Veteran asserts that he has a back disability that is etiologically related to service. The claim must be remanded again because pertinent treatment records were not obtained and the January 2020 VA opinion is inadequate. Stegall, 11 Vet. App. at 271. The prior remand directed the AOJ to take all appropriate action to obtain records from the Medical Center at Grand Forks Air Force Base, where the Veteran testified he was treated during service. The AOJ did not do that. The AOJ sent a development letter to the Veteran, but the letter does not specifically list the Medical Center at Grand Forks Air Force Base. No further action was taken. The January 2020 VA examiner reached a negative nexus opinion but relied exclusively on an absence of documentation of diagnosis or treatment in the records to support their negative nexus opinion. The examiner failed to consider the Veteran's sworn testimony that his back was injured during service. The Veteran testified that he injured his back when he was pinned between a 20 ton payload transporter and 5 ton mechanical van in the High Bay of the 321st Organizational Missile Maintenance Squadron and was treated at Grand Forks Air Force Base Hospital. The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment at the Medical Center at Grand Forks Air Force Base during the Veteran's active service. Document all requests for information as well as all responses in the claims file. 2. Contact the Veteran and, with the Veteran's assistance, identify and obtain copies of any pertinent medical or VA treatment records for the Veteran's back disability claim. If VA attempts to obtain any outstanding records that are unavailable, the Veteran should be notified. 3. After the above development, and any additionally indicated development, obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the Veteran's claimed back condition. The opinion provider should be provided with all pertinent documents, including a copy of this remand. If the opinion provider determines a requested opinion cannot be answered without examination of the Veteran, one should be scheduled. After review of pertinent documents and examination of the Veteran, if required, the opinion provider should answer the following: (a.) Identify any current back disability. (b.) For each identified back disability, is it at least as likely as not (50 percent or greater probability) that it is related to the Veteran's active service, including being pinned between two large vehicles while assigned to the 321st Organizational Missile Maintenance Squadron? The opinion provider is notified that this Veteran's complete service treatment records cannot be located. The Veteran is competent to report the circumstances and events leading to his reported injury as well as his historical and current symptoms. All provided opinions must be supported by complete rationale. If the opinion provider determines that a requested opinion cannot be provided without resort to speculation, the opinion provider must say why. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.