Citation Nr: 21032290 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-12 733 DATE: May 26, 2021 ORDER A compensable rating for bilateral hearing loss is denied. REMANDED The issue of entitlement to an increased rating for PTSD with alcohol use disorder is remanded. The issue of entitlement to service connection for obstructive sleep apnea secondary to PTSD is remanded. VETERAN'S CONTENTIONS The Veteran contended that his bilateral hearing loss was more severe than as reflected by his noncompensable rating because he had difficulty hearing at work and sat up front at meetings; because he looked at people's lips when they spoke to hear better; and, because he had difficulty hearing his wife and the television. FINDING OF FACT During the appeal period, the Veteran's hearing loss was manifested by, at worst, Level II hearing loss in the left ear and Level I hearing loss in the right ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1989 to October 1991. He died in January 2021. The appellant is his surviving spouse, who has been substituted for the Veteran. This matter is before the Board following the Veteran's appeal of a July 2015 rating decision. The Board previously remanded this matter in April 2019. Increased Rating for Bilateral Hearing Loss After review of the evidence of record, the Board finds that a compensable rating is not warranted for the Veteran's service-connected bilateral hearing loss at any time during the period on appeal. 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 speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating 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, Diagnostic Code 6100. Additionally, 38 C.F.R. § 4.86 authorizes VA to evaluate defective hearing based upon puretone thresholds alone when a claimant demonstrates exceptional patterns of hearing impairment. Here, however, the Veteran did not exhibit an exceptional pattern as defined by 38 C.F.R. § 4.86 at any point during the appeal period. Turning to the evidence, the Veteran was afforded a VA audiological examination in July 2015 which documented puretone thresholds of 20, 30, 35, and 60 decibels in the left ear, and 15, 15, 40, and 40 decibels in the right ear at 1000, 2000, 3000, and 4000 Hertz, resulting in average puretone thresholds of 36 decibels in the left ear and 28 decibels in the right ear. Speech audiometry revealed speech recognition ability of 94 percent in the left ear and 92 percent in the right ear. Applying those results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level I hearing loss in the left ear and Level I hearing loss in the right ear. Where hearing loss is at Level I in one ear and Level I in the other, a noncompensable rating is assigned under Table VII. 38 C.F.R. § 4.85. The Veteran was afforded another VA audiological examination in January 2020, which documented puretone thresholds of 25, 15, 30, and 30 decibels in the left ear, and 25, 15, 35, and 35 decibels in the right ear at 1000, 2000, 3000, and 4000 Hertz, resulting in average puretone thresholds of 25 decibels in the left ear and 28 decibels in the right. Speech audiometry revealed speech recognition ability of 86 percent in the left ear and 94 percent in the right ear. Applying those results to Table VI in 38 C.F.R. § 4.85 yields a finding of Level II hearing loss in the left ear and Level I hearing loss in the right ear. Where hearing loss is at Level II in one ear and Level I in the other, a noncompensable rating is assigned under Table VII. 38 C.F.R. § 4.85. The foregoing audiological findings are the only results of record that are valid for rating purposes. 38 C.F.R. § 3.385. While clinical records do show that the Veteran underwent audiometric testing on various occasions in conjunction with VA treatment, the test results showed normal hearing acuity to, at worst, mild hearing loss at one frequency, and were generally deemed unreliable due to inconsistences. See September 2017, October 2017, September 2018, and January 2019 VA treatment notes. Thus, they are neither probative nor supportive of entitlement to a higher rating. The Board has taken into consideration the Veteran's complaints regarding the impact of his hearing loss on his daily life, as well as the VA examiners' and VA providers' discussion of the Veteran's symptoms and the functional effects of hearing loss on his daily life activities and occupational functioning. See 38 C.F.R. § 4.10 ; Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). However, while the Board sympathizes with his complaints, the assignment of disability ratings for hearing impairment is derived from a mechanical formula based on levels of puretone threshold average and speech discrimination. Here, the VA examinations performed during the course of the appeal showed that the Veteran's bilateral hearing loss did not warrant a compensable rating. The Board points out that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician and are not permitted to substitute their own judgment on a medical matter. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In short, the Veteran's bilateral hearing loss is currently rated as noncompensable, and the VA examination audiometric findings are consistent with that rating. The Board concludes that the medical findings on VA examination are of greater probative value than the Veteran's or appellant's allegations regarding the severity of the Veteran's hearing loss. Accordingly, the preponderance of the evidence is against the claim of entitlement to a compensable rating for bilateral hearing loss. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to an increased rating for PTSD with alcohol use disorder is remanded. The Board finds that, prior to adjudicating the claim of entitlement to an increased rating for PTSD with an alcohol use disorder, remand is necessary to ensure that all relevant treatment records have been obtained. In this regard, in June 2017 it was noted that the Veteran had received mental health treatment in Delaware and at the Kaiser in Bakersfield. However, it does not appear that treatment records from the Bakersfield Kaiser have been obtain or even requested. As such, remand is necessary. 2. Entitlement to service connection for obstructive sleep apnea to include as secondary to PTSD with alcohol use disorder is remanded. The Board also finds that the claim of entitlement to service connection for sleep apnea requires remand for an addendum opinion. A March 2019 brief from the appellant's representative discussed the Veteran's contention that his alcohol use disorder (secondary to his service-connected PTSD) led to his weight gain, and that the weight gain was "a substantial factor in causing his Obstructive Sleep Apnea." In other words, the Veteran asserted that his drinking led to his weight gain, which caused or aggravated his obstructive sleep apnea. In a February 2020 opinion, a VA examiner opined that the Veteran's sleep apnea was not caused by his PTSD, observing that his obesity predated his PTSD diagnosis and stating that there was no universally medically recognized standard that PTSD is causative of obesity. However, the examiner failed to address the Veteran's specific contention that his drinking (as opposed to PTSD generally) caused weight gain, or whether weight gain and obesity aggravated the Veteran's obstructive sleep apnea. Although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability." See VAOPGCPREC 1-2017; see also Garner v. Tran, No. 18-5865, 2021 U.S. App. Vet. Claims LEXIS 81, at *16 (Vet. App. Jan. 26, 2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020)). For the reasons set forth above, the Board finds that a new VA addendum opinion is warranted to comment and clarify the raised theory of obesity as an intermediate step. The matters are REMANDED for the following action: 1. With any assistance required from the appellant, obtain relevant outstanding behavioral health treatment records from the Kaiser Permanente in Bakersfield, California. 2. Then, obtain an opinion as to whether the Veteran's obstructive sleep apnea was caused or aggravated beyond its natural progression by his service-connected PTSD with alcohol use disorder. The examiner should address whether obesity was an "intermediate step" between a service-connected disability, such as alcohol use disorder secondary to PTSD, in causing or contributing to any degree to obstructive sleep apnea. Specifically, the examiner should address the Veteran's statements that his drinking secondary to PTSD led to weight gain, and whether his weight gain caused or aggravated his obstructive sleep apnea. A complete rationale for the examiner's opinions should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Fagan 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.