Citation Nr: 21029769 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-59 261 DATE: May 17, 2021 ORDER An compensable disability rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a right hip condition. Entitlement to service connection for a bilateral foot condition. FINDING OF FACT Throughout the appeal period, the Veteran demonstrated hearing acuity corresponding to Level I for the right ear and Level II for the left ear. CONCLUSION OF LAW The criteria for an initial compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to November 1982 and September 1996 to December 2002. The RO issued the rating decision currently on appeal in October 2014. In the October 2014 rating decision, the RO, in pertinent part, continued a noncompensable rating for service-connected bilateral hearing loss and reopened and denied service connection for a right hip disability and for a bilateral foot condition. The Veteran's notice of disagreement (NOD) was received in April 2015. The RO issued the statement of the case (SOC) in November 2016, and the Veteran's VA Form 9, substantive appeal was received in November 2016. The Veteran was scheduled to appear for a hearing before a Veterans Law Judge at the VA Regional Office (RO) in September 2019, but he failed to appear for that hearing and did not offer explanation or request a rescheduled hearing. Therefore, the Veteran's hearing request is considered withdrawn. Increased Disability Rating 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. Disability ratings for service-connected hearing loss range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). See also Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). 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 pure tone audiometry test. See 38 C.F.R. § 4.85(a). Examinations will be conducted without the use of hearing aids. Id. The provisions of 38 C.F.R. § 4.85, Table VI establish eleven auditory acuity levels represented by Roman numeral designations from I to XI based on a combination of pure tone threshold average (vertical columns) and speech discrimination scores (horizontal rows). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. See 38 C.F.R. § 4.85(b). Table VIa provides numeric designation of hearing impairment based only on pure tone threshold average, and is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86. See 38 C.F.R. § 4.85(c). Puretone threshold average, as used in Tables VI and VIa, is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases (including those in 38 C.F.R. § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa. See 38 C.F.R. § 4.85(d). Table VII under 38 C.F.R. § 4.85, is used to determine the percentage evaluation (disability rating to be assigned) by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. See 38 C.F.R. § 4.85(e). If hearing loss is service-connected for only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I. See 38 C.F.R. § 4.85(f). Cases involving exceptional patterns of hearing impairment are addressed under 38 C.F.R. § 4.86. 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. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Additionally, 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. See 38 C.F.R. § 4.86(b). The numeral will then be elevated to the next higher Roman numeral. Id. Each ear will be evaluated separately. 1. Entitlement to a compensable disability rating for bilateral hearing loss. The Veteran is seeking an increased rating for bilateral hearing loss. He filed a claim for increase in February 2012, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). This disability has been assigned a noncompensable (0 percent) rating throughout the entire appeal period. He contends that his hearing loss warrants a compensable disability rating. The Veteran underwent a VA audiological examination in July 2013. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 50 65 LEFT 40 45 55 75 70 Speech audiometry revealed speech recognition ability of 96 percent bilaterally. The pure tone average (of 1000, 2000, 3000 & 4000 Hz) was 37.5 in the right ear and 61.25 in the left ear. Applying the criteria set forth in 38 C.F.R. § 4.85 to these audiometric results yields a Roman numeral I for the right ear based on Table VI; and a Roman numeral II for the left ear, based on Table VI. When these figures are applied to Table VII, the result is a noncompensable disability rating. The VA examiner diagnosed normal and high frequency sensorineural hearing loss in the right ear and mixed hearing loss in the left ear. Therefore, the Board concludes that the criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met. The preponderance of the evidence is against the claim, and the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right hip condition This issue is remanded for a new VA examination. The Veteran seeks service connection for a right hip disability which he states is secondary to his service-connected back disability. He has also stated that the right hip disability began during service. See May 2013 VA examination. The Veteran underwent a VA examination for his right hip pain in May 2013. The VA examiner provided a diagnosis of right hip strain. The examiner did not provide an opinion on direct service connection but opined that the claimed condition was less likely than not proximately due to or the result of the Veteran's service-connected back disability. The examiner stated that the Veteran was first seen for right hip pain after he left active service in July 2003 and provided a diagnosis of iliopsoas tendinosis and right hip strain. The examiner stated that the Veteran was not seen again for right hip pain until August 2011. The examiner concluded that, therefore, the right hip condition was less likely than not related to his back disability and more likely related to a separate musculoskeletal condition unrelated to lumbar surgery. The Board finds that this opinion is not entirely adequate as the examiner did not address the medical evidence showing in-service complaints of right hip pain as well as consistent treatment for right hip pain since service. For example, private treatment records dated in April 2001, during active service, reveal that the Veteran complained of back and right hip pain which began seven months ago. See also August 2001 private treatment note. A July 2003 private treatment note indicates that the Veteran reported right hip pain over the last two years and tingling in his toes. Private treatment records since service show consistent complaints of chronic right hip pain. See e.g. private treatment records dated in November 2003, September 2004, December 2005, January 2006, June 2006, January 2011, August 2011, November 2013 and February 2015. Absent an opinion on the direct theory, with consideration of this pertinent evidence, the VA opinion is incomplete. 2. Entitlement to service connection for a bilateral foot disability other than radiculopathy is remanded. The Veteran seeks service connection for a bilateral foot disability. The Veteran underwent a VA examination in May 2013 in connection with his claim for service connection for a bilateral foot disability. The VA examiner provided diagnoses of hammer toes, hallux valgus, and bilateral heel spurs. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that the Veteran had one podiatry visit for right paronychia and left onychomycosis for which he underwent a partial nail avulsion. The examiner stated that there was no mention of foot conditions on the Veteran's separation examination in November 2002. The May 2013 VA medical opinion relied solely on the lack of medical documentation of a foot disability on separation and did not consider the Veteran's competent lay statements regarding onset of symptoms in service which have continued to the present. Hence, the opinion is insufficient to resolve the complex medical questions raised by the claim. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Additionally, the May 2013 examiner failed to provide an opinion regarding secondary service connection despite the Veteran's statement during the examination that he believes his bilateral foot disability "began associated with back pain/problems." Therefore, a remand is necessary to obtain an opinion on secondary service connection. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed right hip and bilateral foot conditions. After a review of the claims file, the examiner is asked to address each of the following: (a.) Provide a diagnosis for all conditions found extant in the right hip and bilateral feet. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. (b.) For each diagnosis, the examiner must address whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease. (c.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. The examiner is advised that the Veteran is competent to report his observable symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.