Citation Nr: 21031241 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-17 786 DATE: May 21, 2021 ORDER Entitlement to a compensable disability rating for right ear hearing loss prior to February 27, 2021 and in excess of 10 percent thereafter, to include whether an earlier effective date is warranted, is denied. REMANDED Entitlement to service connection for cellulitis and abscess of the mouth (claimed as boils in the mouth), to include as due to exposure to contaminated water while serving at Camp Lejeune is remanded. FINDINGS OF FACT 1. Prior to September 18, 2015, the Veteran's right hearing loss was manifested by no worse than Level II hearing acuity with no exceptional pattern of hearing. 2. From September 18, 2015 to February 26, 2021, the Veteran's right ear hearing loss was manifested by no worse than Level I hearing acuity and his left ear hearing loss was manifested by no worse than Level I hearing acuity; there was no exceptional pattern of hearing. 3. From February 27, 2021, the Veteran displayed an exceptional pattern of hearing in both ears resulting in Level V hearing acuity for the right ear and Level IV hearing acuity for the left ear. 4. The Veteran filed his initial claim of entitlement to service connection for bilateral hearing loss on November 29, 2011; no formal or informal claim was received prior to this date. CONCLUSIONS OF LAW 1. Prior to September 18, 2015, the criteria for a compensable disability rating for right ear hearing loss have not been met. 38 U.S.C. § 1155, 5103; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 2. From September 18, 2015 to February 26, 2021, the criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 3. From February 27, 2021, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5103; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, Diagnostic Code 6100. 4. The criteria for an effective date earlier than November 29, 2011 for the award of service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.114, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2016 and January 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before personnel at the RO in March 2017 and before a Veterans Law Judge (VLJ) in November 2020. Transcripts of the proceedings have been associated with the record. The Board previously remanded the case in December 2020 for further development. The requested development as to the claim adjudicated below has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a compensable disability rating for right ear hearing loss prior to February 27, 2021 and in excess of 10 percent thereafter, to include whether an earlier effective date is warranted, is denied. By way of history, the Veteran submitted a claim of entitlement to service connection for bilateral hearing loss on November 29, 2011. In an August 2013 rating decision, the RO denied service connection for left ear hearing loss and granted service connection for right ear hearing loss with a noncompensable disability rating, effective November 29, 2011. The Veteran disagreed with the decision in a June 2014 correspondence and a September 2014 rating decision confirmed a noncompensable disability rating for right ear hearing loss and denial of left ear hearing loss. In June 2015, VA received an informal claim for hearing loss followed by a September 2015 intent to file and a December 2015 formal claim. A February 2016 rating decision confirmed the noncompensable disability rating for right ear hearing loss and denial of left ear hearing loss. The Veteran submitted a timely notice of disagreement (NOD) in February 2016 and certified his appeal to the Board in March 2017. In December 2020, the Board remanded the issue of entitlement to an increased disability rating and earlier effective date for right ear hearing loss and granted entitlement to service connection for left ear hearing loss. A December 2020 rating decision reflected the grant of service connection for left ear hearing loss with a noncompensable disability rating, effective September 18, 2015, the date VA received the Veteran's intent to file. In a March 2021 rating decision, the RO increased the Veteran's disability rating for bilateral hearing loss to 10 percent, effective February 27, 2021. In January 2021, the Veteran filed a VA Form 10182 NOD in response to the March 2021 rating decision, seeking to remove his claim from the legacy system to the Appeals Modernization Act (AMA) system. Development pursuant to the Board's December 2020 remand was completed and his right ear hearing loss claim was returned to the Board. The Veteran's right ear hearing loss is evaluated under Diagnostic Code 6100. In evaluating hearing loss, disability ratings 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). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Level I indicates essentially normal acuity, while Level XI indicates profound deafness. 38 C.F.R. § 4.85, Tables VI, VII. 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 puretone test. For each ear, the percent of speech discrimination and the puretone threshold average (which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four) are combined on Table VI to produce a Roman numeral designation. See 38 C.F.R. § 4.85. The Roman numeral designations for hearing impairment of each ear are combined on Table VII to determine the percentage evaluation. If impaired hearing is service-connected in 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. 38 C.F.R. § 4.85(f). Table VIA is used when the examiner certifies that the use of 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. §§ 4.85(c), 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIA is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIA is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Turning to the evidence of record, the Veteran was afforded a VA audiological examination in January 2012. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 50 55 35 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 48 decibels for the right ear. Maryland CNC testing revealed speech recognition ability of 88 percent for the right ear. Applying the test results of the January 2012 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear. 38 C.F.R. § 4.85, Table VI. The Veteran's left ear was not service connected at the time, so it is assigned a designation of Level I. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran's hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in August 2014. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 50 60 45 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 51 decibels for the right ear. Maryland CNC testing revealed speech recognition ability of 88 percent for the right ear. Applying the test results of the August 2014 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear. 38 C.F.R. § 4.85, Table VI. The Veteran's left ear was not service connected at the time, so it is assigned a designation of Level I. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran's hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in January 2016. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 55 55 65 50 LEFT 35 40 45 30 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 56 decibels for the right ear and 38 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 92 percent for the right ear and 100 percent for the left ear. Applying the test results of the January 2016 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right ear and Level I for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran's bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in March 2017. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 35 40 50 LEFT 30 25 25 30 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 38.75 decibels for the right ear and 27.5 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 92 percent for the right ear and 100 percent for the left ear. Applying the test results of the March 2017 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level I for the right ear and Level I for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran's bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran was afforded a VA audiological examination in February 2021. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 65 65 70 65 LEFT 55 60 60 55 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 66 decibels for the right ear and 58 decibels for the left ear. Maryland CNC testing revealed speech recognition ability of 96 percent for the right ear and 100 percent for the left ear. Applying the test results of the February 2020 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear and Level II for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran's bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. However, the Board notes that puretone thresholds for both of the Veteran's ears reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a), that is, the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. See 38 C.F.R. § 4.86(a). Under Table VIA, the Veteran has a Roman numeric designation of V for his right ear and IV for his left ear. Using Table VII, the Veteran's Roman numeric designations correspond to a 10 percent rating and results in a greater evaluation than afforded under Table VI. The Board notes that the Veteran submitted an audiological evaluation in June 2018. However, the results from the examination are not valid for rating purposes, as it did not use the Maryland CNC test in accordance with 38 C.F.R. § 4.85(a). For the period prior to September 18, 2015, the Board finds that the evidence does not support a compensable disability rating for the Veteran's right ear hearing loss. Results from the January 2012 and August 2014 VA audiological examinations do not reflect right ear hearing loss severe enough to warrant a higher disability rating. For the period from September 18, 2015 but prior to February 27, 2021, following the Veteran's award of service connection for left ear hearing loss, the Board finds that the evidence continues to reflect hearing loss that warrants a noncompensable disability rating. Specifically, January 2016 and March 2017 VA audiological examinations do not reflect hearing loss severe enough to warrant a higher disability rating. Finally, from February 27, 2021, the Board finds that the evidence does not support a disability rating in excess of 10 percent for hearing loss. February 27, 2021, the date of the VA audiological examination, is the earliest date as of which it was factually ascertainable that an increase in the Veteran's disability occurred. The February 2021 VA audiological examination does not reflect hearing loss severe enough to warrant a higher disability rating. The Board has considered the Veteran's statements and in no way discounts the Veteran's asserted difficulties or his assertions that his hearing loss should be rated higher. However, the valid VA examinations of record were conducted in accordance with the requirements for a hearing impairment examination for VA purposes. See 38 C.F.R. § 4.85(a). It is emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With regard to the Veteran's assertion that his right ear hearing loss warrants an earlier effective date, generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, the Veteran's effective date for the award of service connection for right ear hearing loss is based upon the receipt of his November 29, 2011 application for compensation. The record does not contain any communication of record that could serve as a formal or informal claim prior to November 29, 2011. Specifically, there is no evidence that reflects an intent to seek benefits for right ear hearing loss. As such, the Board cannot find a basis to establish an effective date earlier than November 29, 2011 for the award of service connection for right ear hearing loss. In sum, the evidence is against finding that the Veteran's right ear hearing loss warrants a compensable rating prior to September 18, 2015, a compensable rating prior to February 27, 2021, and a rating in excess of 10 percent from February 27, 2021. As such, the Veteran's claim for increased disability ratings for his hearing loss is denied. Additionally, the evidence is against an effective date earlier than November 29, 2011, for the Veteran's award of service connection for right ear hearing loss. As such, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to service connection for cellulitis and abscess of the mouth (claimed as boils in the mouth), to include as due to exposure to contaminated water while serving at Camp Lejeune is remanded. The Veteran seeks to establish service connection for cellulitis and abscess of the mouth, which he originally claimed as boils in the mouth. The Veteran contends his cellulitis and abscess of the mouth are etiologically related to drinking contaminated water while serving at Camp Lejeune. In the December 2020 remand, the Board determined that VA was required to afford the Veteran a VA examination, as exposure to contaminated water at Camp Lejeune had been conceded and his treatment records reflected a diagnosis of cellulitis and abcess of the mouth. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a medical examination is necessary when the evidence indicates that a current disability may be associated with service or a service-connected disability but is lacking in specificity to support a decision on the merits). Pursuant to the Board's remand, the Veteran was scheduled for a VA examination in February 2021. The VA examiner indicated that review of the Veteran's treatment records showed episodes of a non-specific gingivitis/glossitis but did not reveal treatment for any mouth lesions. Similarly, there was no evidence of lesions on the gingiva or the tongue during examination of the Veteran. The examiner concluded that given the history related by the Veteran, the most appropriate differential diagnosis would be an acute gingivostomatitis that arose on a variable basis; however, a definitive diagnosis could not be provided at this time, as there was no prior mention of disease in the dental notes and no evidence of disease on examination. The examiner went on to opine that acute gingivostomatitis was less likely than not related to the Veteran's exposure to contaminated water at Camp Lejeune. While the February 2021 examiner provided a thorough rationale in support of the negative nexus opinion provided for acute gingivostomatitis, the Veteran's cellulitis and abscess of the mouth was not addressed in the examiner's opinion. Treatment records from 2002 and 2003 contain documentation of cellulitis and abscess of the mouth, chronic periapical abscess, and apical abscess. The Veteran has reported that he continues to suffer from lesions in the mouth. As the examiner stated that there was no mention of disease in the Veteran's dental records, it is unclear whether the examiner considered the Veteran's documented cellulitis and abscess of the mouth when forming his opinion or whether the Veteran does not have a current diagnosis of cellulitis and abscess of the mouth. Therefore, the Board finds that remand for an addendum opinion is necessary The matter is REMANDED for the following action: 1. Obtain an addendum opinion from the February 2021 VA examiner or, if unavailable, another appropriate clinician, regarding the Veteran's cellulitis and abscess of the mouth. The claims file and a copy of this remand must be made available to the examiner. The need for an examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should respond to the following: a) Does the Veteran have a current diagnosis (at any point during the appeal period) of cellulitis and abscess of the mouth? Please explain why or why not. b) If so, is it as least as likely as not (50 percent probability or greater) that the Veteran's cellulitis and abscess of the mouth is etiologically related to active duty service? Please explain why or why not. Opinions must reflect consideration of the Veteran's reports of symptoms. The examiner is reminded that the Veteran's exposure to contaminated water at Camp Lejeune has been conceded. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.