Citation Nr: 21041447 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 14-35 909 DATE: July 9, 2021 ORDER The claim for an initial compensable disability rating for bilateral hearing loss is denied. The claim for an initial compensable disability rating for a right pulmonary nodule is denied. The claim for an initial disability rating in excess of 10 percent for residuals of a right wrist scapholunate dislocation is denied. FINDINGS OF FACT 1. Throughout the pendency of the appeal, the Veteran had no worse than Level I hearing in the right ear and no worse than Level II hearing in the left ear. 2. Throughout the pendency of the appeal, the Veteran's right pulmonary nodule has been asymptomatic and has not had any significant effect on pulmonary function. 3. Throughout the pendency of the appeal, the evidence of record has not shown ankylosis in the Veteran's right wrist and did not manifest with such exceptional or unusual symptoms and severity to require extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86 Diagnostic Code (DC) 6100. 2. The criteria for a compensable disability rating for a right pulmonary nodule have not been. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, DC 6820. 3. The criteria for an initial disability rating in excess of 10 percent for residuals of a right wrist scapholunate dislocation have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.25, 4.71a, DCs 5214, 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1991 to August 1991 and from April 1993 to November 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), in Roanoke, Virginia. This matter was previously remanded by the Board for further development in March 2019. The requested development has been completed and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 1. An initial compensable disability rating for bilateral hearing loss The Veteran is service-connected for bilateral hearing loss, which has been rated noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100 throughout the pendency of the appeal. He asserts that his hearing loss warrants a higher rating. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the pure tone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) pure tone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On the authorized VA audiologic evaluation for rating purposes, in March 2013, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 20 50 LEFT 15 15 35 65 75 The pure tone average was 26.25 in the right ear and 47.5 for the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. These audiometry test results equate to Level I hearing in the right ear and Level I hearing in the left ear under Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear result in a noncompensable disability rating. 38 C.F.R. § 4.85. On the authorized VA audiologic evaluation for rating purposes, in June 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 60 LEFT 20 20 35 60 75 The pure tone average was 28.75 in the right ear and 47.5 for the left ear. Speech audiometry revealed speech recognition ability of 96 percent, bilaterally. These audiometry test results equate to Level I hearing in the right ear and Level I hearing in the left ear under Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear result in a noncompensable disability rating. 38 C.F.R. § 4.85. According to a private audiological report from MAICO Audiological Services, dated January 2018, the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 65 LEFT 10 10 30 60 75 The pure tone average was 30 in the right ear and 43.5 for the left ear. Speech audiometry revealed speech recognition ability of 100 percent, in the right ear and 88 percent in the left ear. These audiometry test results equate to Level I hearing in the right ear and Level I hearing in the left ear under Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level II hearing in the left ear result in a noncompensable disability rating. 38 C.F.R. § 4.85. On the authorized VA audiologic evaluation for rating purposes, in July 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 65 LEFT 10 25 35 60 70 The pure tone average was 31.25 in the right ear and 47.5 for the left ear. Speech audiometry revealed speech recognition ability of 96 percent, bilaterally. These audiometry test results equate to Level I hearing in the right ear and Level I hearing in the left ear under Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level I hearing in the left ear result in a noncompensable disability rating. 38 C.F.R. § 4.85. The Board has reviewed the Veteran's treatment notes and found no discussion of on-going treatment or evaluations of his hearing loss disability. Further, the record does not indicate he has undergone audiological testing that suggests his hearing loss is more severe than reported above. The Board has considered the Veteran's lay statements and reports of hearing loss for this period on appeal. Notably, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this regard, it was noted during the Veteran's July 2019 VA audiological evaluation that he had difficulty hearing clearly in background noise, had to ask speakers to repeat themselves, and increased the volume on devices. In June 2017, the Veteran stated, "I more often [than] not have to ask people to repeat themselves when conversing that is worse in the background noise." Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, while the Veteran is competent to report observable symptoms of his hearing loss, such as difficulty understanding speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percentage evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Board is sympathetic to the Veteran's assertions that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing under situational circumstances unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. The rating criteria are designed to evaluate difficulty hearing, the complaint put forth by the Veteran. In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. Accordingly, after a review of the evidence the Board finds the Veteran's bilateral hearing loss does not warrant a compensable rating at any time during the appeal period. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. An initial compensable disability rating for a right pulmonary nodule The Veteran's right pulmonary nodule is rated as noncompensable under DC 6820 for benign neoplasms of any part of the respiratory system, which provides for evaluation using an appropriate respiratory analogy. 38 C.F.R. § 4.97, DC 6820. The Board considered respiratory disorders for which a pulmonary function test is a basis for the evaluation. These disorders are found in Diagnostic Codes 6520, 6600, 6602 through 6604, 6825 through 6833 and 6840 through 6845. For the following reasons, the Board finds that the Veteran's right pulmonary nodule does not warrant a compensable rating. The Veteran testified at his November 2018 Board hearing that he had noticed a decrease in lung capacity, as he experienced shortness of breath since his last examination in June 2017. He indicated that he experiences difficulties when running on the job as a police officer and when climbing flights of stairs. The Veteran's spouse testified that she had also noticed his loud and labored breathing. In March 2013, the Veteran was afforded an examination of respiratory conditions. The Veteran stated he had no symptoms of the nodule and there were no current symptoms. The examiner performed a Pulmonary Function Test (PFT). The Veteran's Forced expiratory volume in one second (FEV-1) was 89 percent predicted, Forced Vital Capacity (FVC) was 88 percent predicted, and had an FEV-1/FVC ratio of 101 percent, pre-bronchodilator. The post-bronchodilator PFT FEV-1 result was 88 percent predicted, FVC was 85 percent predicted, and had an FEV-1/FVC ratio of 104 percent. The VA examiner also found that the Veteran did not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. The VA examiner also determined that the Veteran's disability did not impact his ability to work. According to a June 2017 VA examination report, the Veteran stated he had no current symptoms. The Veteran did not require the use of any medication or oxygen therapy to treat his right pulmonary nodule. The VA examiner performed a PFT where the FEV-1 was 84 percent predicted, FVC was 81 percent predicted, and an FEV-1/FVC ratio of 103 percent, pre-bronchodilator. The post-bronchodilator PFT FEV-1 result was 82 percent predicted, FVC was 78 percent predicted, and had an FEV-1/FVC ratio of 106 percent. The VA examiner noted that the FEV-1/FVC results most accurately reflected the Veteran's level of disability. The VA examiner also found that the Veteran did not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. It was noted that the Veteran's disability did not impact his ability to work. Furthermore, the VA examiner stated, "[a]t this time, the [Veteran's] condition is quiescent... The [Veteran] reported no symptoms due to the condition and the PFT results were within normal limits." Finally, according to a June 2019 VA examination, the Veteran did not have any symptoms related to a pulmonary nodule but had mild to moderate pain on the left rib cage where he had a fracture in 2005. The Veteran did not require the use of any medication or oxygen therapy to treat his right pulmonary nodule. The VA examiner performed a PFT where the FEV-1 was 97 percent predicted, FVC was 92 percent predicted, and an FEV-1/FVC ratio of 105 percent, pre-bronchodilator. The post-bronchodilator FEV-1 was 99 percent predicted, 92 percent predicted, and had an FEV-1/FVC ratio of 108 percent. The VA examiner noted that the FEV-1/FVC results most accurately reflected the Veteran's level of disability. The VA examiner also found that the Veteran did not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. Furthermore, the VA examiner noted that the "[r]ight pulmonary nodule on the lung has no impact on [V]eteran['s] ability to work" but that "[p]ain with pressure on the left ribcage or movement such as bending, standing due to left fifth rib fracture residual pain, sitting [V]eteran experiences pain making it hard to work in his current occupation as a police officer." Accordingly, these findings do not warrant a compensable rating chronic under an appropriate respiratory analogy. None of the other Diagnostic Codes would be more favorable to the Veteran to rate his right pulmonary nodule. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 3. An initial disability rating in excess of 10 percent for residuals of a right wrist scapholunate dislocation The Veteran's right wrist disability has been evaluated as 10 percent disabling under Diagnostic Code 5215, which assigns a 10 percent rating when palmar flexion of the wrist is limited in line with the forearm, or where dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. This is the maximum schedular rating based on limitation of motion of the wrist under this diagnostic code. A higher rating is not warranted unless ankylosis is shown under Diagnostic Code 5214. However, a preponderance of the evidence is against a finding that favorable or unfavorable ankylosis of the right wrist was shown during the period under consideration. At his November 2018 Board hearing, the Veteran reported increased pain in his wrist with tingling sensation in his fingers and would occasionally lose sensation in his fingertips. As a police officer, he reported having increased difficulty when handling his weapon. He had noticed a change in his grip with some shakiness. He also reported flare ups every month, affecting activities such as yard work and other house chores. It is his assertion that his wrist disability has worsened since his last VA examination in June 2015. He testified that due to his pain he was recommended to undergo physical therapy. The Veteran was afforded a VA examination in June 2019 pursuant to the March 2019 Board remand, however, no ankylosis in the right wrist was found. Additionally, no treatment record, examination report, or contention shows or even suggests the presence of ankylosis in the right wrist. That is, the range of motion in the wrist was not shown to be so limited as to approximate ankylosis. For example, he had palmar flexion 0-50 degrees (0-80 degrees normal); Ulnar Deviation 0-25 degrees (0-45 degrees normal) to degrees; Dorsiflexion 0-60 degrees (0-70 degrees normal); and Radial Deviation 0-15 degrees (0-20 degrees normal). Based on the foregoing, a higher disability rating is not warranted. The Veteran receives the maximum rating in the absence of ankylosis. The Board recognizes the Veteran's request for extraschedular consideration, explaining that the right wrist disability caused marked interference with his job as a police officer because it made it difficult to hold a firearm. It is noted that the Board had remanded the Veteran's claim in 2019 so that in part the wrist claim could be referred to the Director of Compensation. The Director found that an extraschedular rating was not warranted in this case. After reviewing the Veteran's statements and the medical evidence, the Director concluded that the VA examinations of record denote the description of a right wrist disability that has no significant impact on employment, and found that there has been no factual demonstration of impairment to earning capacity based on exceptional or unusual factors causing any disruption to employment such as hospitalizations, etc., and, the evidence showed that the Veteran was currently employed as a Police Officer. Where the Board of Veterans' Appeals referred a claim to the Director for extraschedular consideration and the Director denied an extraschedular rating, the Board's earlier decision to refer the claim does not automatically bind the Board when it later decided whether to award an extraschedular rating. However, the Board must explain why the factual finding it made at the referral stage came out differently at the review stage. Here, it is noted that the Board did not specifically analyze and weigh the evidence of employability prior to remanding it so that it could be referred to the Director of Compensation Service. In keeping with the principle that the Board should maximize the Veteran's benefits, the Board remanded. This action had the benefit of giving the Veteran another proverbial bite of the apple in that a second party would consider the evidence; and, had the Director found that the wrist disability was not adequately compensated by the schedular rating that was assigned. Now, because the Director has not found this standard to have been met, the Board undertook the analysis. Had the Board simply analyzed the evidence and not remanded the claim, the claim would have been denied sooner, and the Veteran would have lost the opportunity for a second party to search for evidence supporting a grant of benefits. Prior to the Board remanding for referral to the Director of Compensation Service, the Board did not actually find that the evidence supported an extra-schedular rating for the wrist. Rather, the Board relayed the Veteran's complaints about pain in the wrist and how the pain made it difficult on occasion to hold a firearm. Having now reviewed the evidence of record, following the provision of an additional VA examination, the Board finds the Veteran's limitation of motion and painful motion of the right wrist is not such an exceptional case that consideration of an extraschedular rating is warranted. Here, based on the evidence of record, the Veteran does not even meet the limitation of motion criteria under DC 5215 to warrant a 10 percent rating. Again, under Diagnostic Code 5215, a 10 percent rating is warranted where palmar flexion of the wrist is limited in line with the forearm, or where dorsiflexion is less than 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5215. The Veteran was afforded VA examinations of the wrist in March 2013, August 2017, and June 2017 where the range of motion testing revealed his right palmar flexion of the wrist was not limited in line with the forearm and his right dorsiflexion was at worse 20 degrees (in August 2017). The Veteran has reported experiencing pain in his wrist, but the presence of pain was what allowed for the assignment of a compensable rating in the first instance, as consideration of pain is implicitly considered in the evaluation of musculoskeletal disabilities. The Veteran has reported that his wrist problems have caused difficulty on occasion holding a firearm, but some interference with employment is still contemplated by the schedular rating that is assigned, and there is not an indication that such impairment has caused marked interference with the Veteran's employment. That is, the Veteran continues to be fully employed as a police officer and there is no indication that he has required any special accomodation on account of difficulty holding a firearm. Thus, the Veteran's symptoms of the right wrist disability are neither exceptional nor unusual in severity as to require extraschedular consideration, as they are wholly covered by the assigned schedular rating. Accordingly, entitlement to an initial disability rating in excess of 10 percent for residuals of a right wrist scapholunate dislocation is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.