Citation Nr: 21032466 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-43 397 DATE: May 27, 2021 ORDER Entitlement to increased disability ratings for service-connected bilateral hearing loss, evaluated as zero percent prior to January 29, 2015 and 20 percent thereafter is denied. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), claimed as secondary to bilateral foot disability or service-connected coronary artery disease (CAD), is remanded. FINDINGS OF FACT 1. Prior to January 29, 2015, the Veteran's bilateral hearing loss was productive of no worse than Level I hearing impairment in the right ear and Level IV in the left ear. 2. From January 29, 2015, the Veteran's bilateral hearing loss was productive of no worse than Level IV hearing impairment in the right ear and Level VII hearing impairment in the left ear. CONCLUSIONS OF LAW 1. Prior to January 29, 2015, the criteria for a compensable initial disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. 2. From January 29, 2015, the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to February 1971. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated June 2013, December 2017, and February 2018 of the Department of Veterans Affairs (VA) Regional Office (RO). In the June 2013 rating decision, the RO denied a compensable disability rating for left ear hearing loss. The Veteran filed a notice of disagreement (NOD) in August 2013 and a statement of the case (SOC) was issued in October 2014. A timely substantive appeal was received in November 2014, at which time the Veteran requested a Board hearing. In an April 2016 rating decision, the RO granted service connection for right ear hearing loss, effective September 29, 2012. The RO assigned a compensable disability rating for bilateral hearing loss from September 29, 2012, and a 20 percent rating from January 29, 2015. In connection with his appeal, the Veteran testified at a Board hearing at the RO in October 2017. Unfortunately, technical difficulties prevented the creation of a transcript. As a result, the Veteran was offered the opportunity to testify at another Board hearing and he accepted, requesting a Board videoconference hearing. In the December 2017 rating decision, the RO denied service connection for plantar fasciitis. In the February 2018 rating decision, the RO denied service connection for sleep apnea. A timely NOD with respect to both issues was received in April 2018. Following the issuance of SOCs in July 2018and May 2019, a timely substantive appeal was received in June 2019. In October 2019, the Veteran testified at a videoconference hearing Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. In a June 2011 Board decision, the claims were remanded for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in February 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The Board notes that the Veteran's claim on appeal has been identified as 'entitlement to service connection for bilateral plantar fasciitis.' However, a review of the record demonstrates that the Veteran has asserted entitlement to service connection for disabilities of the bilateral feet, however diagnosed. See the Veteran's NOD dated April 2018 and the Board hearing transcript dated October 2019. To this end, the Board notes that the Veteran has been diagnosed with degenerative arthritis and bone spurs of the bilateral feet. See, e.g., the VA examination dated December 2020. Thus, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has rephrased the issue on appeal as 'entitlement to service connection for a bilateral foot disability.' 1. Entitlement to increased disability ratings for service-connected bilateral hearing loss, evaluated as zero percent prior to January 29, 2015 and 20 percent thereafter. The Veteran was originally granted service connection for left ear hearing loss in a July 1971 rating decision; a noncompensable rating was assigned from February 17, 1971. In September 2012, the Veteran filed a claim of entitlement to an increased disability rating for hearing loss. As indicated above, the RO confirmed and continued the assigned noncompensable evaluation for left ear hearing loss in a June 2013 rating decision. The Veteran filed a NOD in August 2013 and this appeal follows. As indicated above, in an April 2016 rating decision, the RO granted service connection for right ear hearing loss, effective from September 29, 2012. The RO assigned a compensable disability rating for bilateral hearing loss from September 29, 2012, and a 20 percent disability rating from January 29, 2015. As will be explained below, the resolution of this issue involves determining the levels of hearing acuity. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85(d). Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the percentage evaluation 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. 38 C.F.R. § 4.85(e). In cases where 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, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below, and are 70 decibels or more at 2000 Hz. See 38 C.F.R. § 4.86. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claim. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Board has considered all evidence of record as it bears on the issue before it. See 38 U.S.C. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal. a. Prior to January 29, 2015. The Veteran filed a claim of entitlement to an increased disability rating for hearing loss in September 2012. He was afforded a VA audiology examination in April 2013 at which time the examiner noted the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 20 35 60 65 45 LEFT 55 65 80 90 72 Average pure tone threshold was 45 decibels in the right ear with speech recognition ability of 92 percent. Average pure tone threshold was 72 decibels in the left ear with speech recognition ability of 80 percent. The examiner stated that the Veteran's bilateral hearing loss does impact the ordinary conditions of his daily life, including his ability to work; specifically, his hearing ability is impacted by background noise. Such examination findings translate to level I hearing impairment in the right ear and level IV hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable (zero percent) rating. In a June 2013 statement, the Veteran reported that his family complains that he is unresponsive to their words. The Veteran misses phone calls, pages, and alarms due to his hearing loss. He is employed as a school district electrician. He stated that his hearing loss has become a "huge issue at my job because I am not always aware of what is going on around me." A private audiogram dated December 2014 revealed the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 55 60 41.25 LEFT 55 65 75 95 72.5 Accordingly, audiometric testing conducted for VA compensation purposes indicates that a compensable rating is not warranted prior to January 29, 2015. The Board notes that the December 2014 private audiogram does not indicate that speech recognition scores were obtained using the Maryland CNC test, as required by 38 C.F.R. § 4.85(a). A remand for clarification of this private audiogram is not warranted because such is required only when "a private medical report is the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight." Carter v. Shinseki, 26 Vet. App. 534, 545 (2014), vacated on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015) (citing Savage v. Shinseki, 24 Vet. App. 259, 267-70 (2011)); Savage, 24 Vet. App. at 270 (specifically limiting this duty to situations where "the missing information is relevant, factual, and objective-that is, not a matter of opinion" but also noting that, when it is applicable, the duty to clarify "includes medical examination reports of all kinds"). In this matter, there is other medical evidence for the period herein under consideration, which is material as to the question of entitlement to a higher rating for service-connected bilateral hearing loss. As such, remand is not warranted. Critically, there is no probative audiological evidence of record to support a compensable rating for the Veteran's bilateral hearing loss disability prior to January 29, 2015. The preponderance of the evidence is against the Veteran's claim for a compensable disability rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. b. From January 29, 2015. An April 2016 VA audiology examination documented the pure tone thresholds indicated below: HERTZ 1000 2000 3000 4000 Average RIGHT 40 60 75 80 63.75 LEFT 60 90 105 105 90 Average pure tone threshold was 63.75 decibels in the right ear with speech recognition ability of 80 percent. Average pure tone threshold was 90 decibels in the left ear with speech recognition ability of 70 percent. The examiner stated that the Veteran's bilateral hearing loss does impact his ordinary conditions of daily life including his ability to work. The Veteran reported that he has to read lips when communicating. Such examination findings translate to level IV hearing in the right ear and level VII hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a 20 percent rating. Pursuant to the November 2020 Board Remand, the Veteran was afforded a VA audiology examination in December 2020. The examiner documented the following pure-tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 65 75 53 LEFT 55 75 90 100 80 The average pure tone threshold was 53 decibels in the right ear with speech recognition ability of 100 percent. The average pure tone threshold was 80 decibels in the left ear with speech recognition ability of 100 percent. The examiner stated that the Veteran's bilateral hearing loss impacts his ordinary conditions of daily life including his ability to work; specifically, the Veteran described "[p]roblems hearing in conversation. Problems hearing family and friends. Problems hearing in the presence of background noise." He additionally explained that, in daily life, he experiences "[p]roblems hearing in conversation. Problems hearing in the presence of background noise. Asks for repetition often." These examination findings translate to level I hearing in the right ear and level II hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a zero percent rating. However, because the Veteran's hearing loss represents an exceptional pattern of hearing loss in the left ear as defined by 38 C.F.R. § 4.86(a), Table VIa may be used if it reflects a higher level of hearing loss. The Board notes that, pursuant to Table VIa, the findings translate to level VII hearing in the left ear. Applying Table VII, DC 6100, this still equates to a zero percent rating. The Veteran's VA treatment records for the appeal period document an on-going diagnosis of impaired hearing. However, there are no additional audiological results documented during this period. Critically, there is no probative audiology evidence of record to support a rating in excess of 20 percent for the Veteran's bilateral hearing loss disability for the period dating from January 29, 2015. The preponderance of the evidence is against the Veteran's claim for a higher disability rating. Consequently, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. c. Other considerations During all periods on appeal, the Board in no way discounts the difficulties that the Veteran experiences as a result of his service-connected bilateral hearing loss disability. In this regard, it must be emphasized that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent and valid audiology studies. See Lendenmann, 3. Vet. App. at 345. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of higher disability ratings. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability. His hearing loss is manifested by decreased hearing acuity. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing and understanding speech. The Board notes that this conclusion is consistent with the Court's holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[W]hen a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria"). The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss, such as dizziness, vertigo, or ear pain, not contemplated by the rating criteria. Because the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluations are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence does not show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral foot disability is remanded. The claim on appeal was remanded by the Board in November 2020 in order to obtain a VA examination and nexus opinion. Pursuant to the Board Remand, the December 2020 VA examiner indicated that the Veteran does not have a current diagnosis of plantar fasciitis. The examiner's negative nexus opinion was based upon the absence of a plantar fasciitis diagnosis. As set forth above, the Board has herein expanded the issue on appeal to entitlement to service connection for a bilateral foot disability. Accordingly, the claim must be remanded for a new VA medical opinion to address the etiology of the Veteran's diagnosed bilateral foot disability to include the documented diagnoses of degenerative arthritis and bone spurs. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. 2. Entitlement to service connection for OSA, to include as secondary to bilateral foot disability or service-connected CAD, is remanded. The matter of entitlement to service connection for OSA is inextricably intertwined with the matter of entitlement to service connection for a bilateral foot disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Therefore, this claim must also be remanded. The matters are REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The AOJ shall refer the VA claims file to a clinician with appropriate expertise to provide an opinion as to the claimed bilateral foot disability. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. If the clinician determines that an examination is necessary, one should be scheduled. The clinician should then respond to the following: (a). The examiner should identify any current bilateral foot disability to include degenerative arthritis and bone spurs. (b). The examiner should then provide an opinion as to whether it is at least as likely as not that any diagnosed bilateral foot disability began during active service or is related to an in-service injury, event, or disease. In addressing the above, the examiner must consider all pertinent in- and post-service evidence, including the Veteran's lay assertions that he suffered from said disabilities during his active duty service that has continued to the present day. (Continued on the next page) In this regard, the examiner should note that the absence of evidence of treatment for claimed disabilities in the Veteran's service treatment records should not serve as the sole basis for a negative opinion. In providing the requested opinion, the examiner should consider the Veteran's description of his in-service knee injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.