Citation Nr: 21041738 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-17 577 DATE: July 10, 2021 ORDER Entitlement to an initial compensable rating for a bilateral hearing loss disability prior to December 9, 2019 and in excess of 10 percent thereafter is denied. REMANDED 1. Entitlement to service connection for a gastrointestinal disability, to include as due to contaminated water at Camp Lejeune is remanded. 2. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular TDIU, is remanded. FINDING OF FACT 1. For the period prior to December 9, 2019, the Veteran's bilateral hearing loss had no worse than a level II hearing loss for the right ear and a level I hearing loss for the left ear. 2. From December 9, 2019, the Veteran's bilateral hearing loss had no worse than a level VI hearing loss for the right ear and a level II hearing loss for the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for a bilateral hearing loss disability prior to December 9, 2019 and in excess of 10 percent thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1973 to December 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs VA Regional Office. In August 2020, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. The Board notes the Veteran disagreed with the initial rating of 10 percent for his tinnitus disability in a December 2016 notice of disagreement. In a March 2018 statement of the case, his increased rating claims for tinnitus and bilateral hearing loss disability and service connection claim for esophagitis were denied. In a March 2018 VA Form 9 in March 2018, he formally appealed the denial of an increased rating claim for bilateral hearing loss and service connection for esophagitis but did not formally appeal the denial of an increased rating for his tinnitus disability. There is no further communication from the Veteran or his representative regarding his tinnitus. On December 2019, he was notified that his tinnitus claim was withdrawn based on his March 2018 VA Form 9. Accordingly, as he did not formally appeal his increased rating claim for tinnitus, the Board has no jurisdiction over that issue. As an initial matter, during the pendency of the appeal, the VA Regional Office staged the Veteran's bilateral hearing loss disability. In a December 2019 rating decision, it granted the Veteran a 10 percent increased rating, effective December 9, 2019. In a December 2019 supplemental statement of the case, he was notified of the VA regional office's denial of an initial compensable rating prior to December 9, 2019. As this is not the full grant of the benefit sought, the claim remains in appellate status. 1. Entitlement to an initial compensable rating for a bilateral hearing loss disability prior to December 9, 2019 and in excess of 10 percent thereafter is denied. The Veteran seeks an increased rating for his bilateral hearing loss disability. Specifically, he asserts that his bilateral hearing loss disability has worsened and affected his employment. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. Evaluations of defective hearing range from 0 to 100 percent. This is based on impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the Maryland CNC speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the puretone decibel loss. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity. The ratings for disability compensation for hearing loss are determined by the mechanical, meaning non-discretionary, application of the above criteria. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Prior to December 9, 2019 Upon review of the evidence, the Board finds that the preponderance of the evidence is against assigning an initial compensable rating for his bilateral hearing loss disability prior to December 9, 2019. The Veteran's initial VA examination on September 2016 shows his puretone thresholds for the right ear, in dB, were 25dB at 1000Hz; 40dB at 2000Hz; 60dB at 3000Hz; and 60dB at 4000Hz, with an average of 46dB. Puretone thresholds for the left ear, in dB, were 20dB at 1000Hz; 25dB at 2000Hz; 40dB at 3000Hz; and 50dB at 4000Hz, with an average of 34dB. Speech discrimination scores revealed speech recognition ability of 88 percent for the right ear and 96 percent for the left ear. Applying his average puretone threshold in dB and speech discrimination scores to Table VI, his right ear yields a level II hearing loss and his left ear yields a level I hearing loss. In this regard, the Board finds that his right ear is the poorer ear and his left ear is the better ear. Applying these results to Table VII, a level II for the right ear combined with a level I for the left ear results in a non-compensable rating for his bilateral hearing loss disability. In September 2016, he underwent a private audiological examination and the private audiologist noted he was experiencing an increase in severity of his hearing. The private audiologist noted his audiogram shows moderate to moderately severe bilateral hearing loss. His audiogram, provided in graph form, was also included in these private treatment records. The Board notes that the Board may interpret the graphical representation contained in the audiogram into numerical results so as to appropriately rate the hearing disability. Kelly v. Brown, 7 Vet. App. 471, 474 (1995). However, in this matter, the Board is unable to interpret the audiometric readings shown in the graph. Additionally, the Board finds that the private audiologist administered the NU-6 A/R word list and not the Maryland CNC speech discrimination test as provided under 38 C.F.R. § 4.85 (a). In this regard, the Board ultimately finds that the September 2016 private audiological examination is inadequate for rating the Veteran's bilateral hearing loss disability and assigned little to no probative weight. The Veteran's VA treatment record indicates he had audiological evaluation in October 2017 which shows his puretone thresholds for the right ear, in dB, were 25dB at 1000Hz; 35dB at 2000Hz; 60dB at 3000Hz; and 60dB at 4000Hz, with an average of 45dB. Puretone thresholds for the left ear, in dB, were 10dB at 1000Hz; 20dB at 2000Hz; 35dB at 3000Hz; and 55dB at 4000Hz, with an average of 30dB. Speech discrimination scores revealed speech recognition ability of 96 percent for both ears. Applying his average puretone threshold in dB and speech discrimination scores to Table VI, both his right and left ear, yields a level I hearing loss. As the results yield the same level of hearing loss for both ears, there is no worser or better ear to be distinguished. Applying these results to Table VII, his bilateral hearing loss disability, the Board again finds that his bilateral hearing loss results in a non-compensable rating. In April 2018, the Veteran submitted private treatment records containing a report from an audiologist from Chelmsford Hearing Group. However, the Board finds that the medical report is inadequate. While, the private audiologist noted a full diagnostic test was performed including speech reception threshold, speech discrimination, and bilateral pure tone thresholds, the private audiologist did not provide any puretone threshold findings for the frequency of 1000 Hz to 4000 Hz. Notwithstanding the missing puretone threshold findings, the speech recognition test implemented was again the NU-6 standardized word list. The Board acknowledge the private audiologist's explanation that the standardized NU-6 word list is a phonetically balanced word recognition test that employs CNC words and is the list most commonly used for adults. However, as provided under 38 C.F.R. § 4.85 (a), VA examinations for hearing loss must include a controlled speech discrimination test, the Maryland CNC. As such, the Board finds the April 2018 audiological evaluation to be inadequate for rating his bilateral hearing loss disability and is afforded little to no probative weight The Board has considered the Veteran's assertion that his bilateral hearing loss disability worsened prior to December 9, 2019. However, there is no evidence to contrary. As such, the Board finds the September 2016 VA examination and October 2017 VA audiological evaluation to be the most probative evidence here. In this regard, the Board finds that the preponderance of the evidence is against assigning an initial compensable rating prior to December 9, 2019. From December 9, 2019 With regards to the period beginning on December 9, 2019, the Board finds that that a rating in excess of 10 percent is not warranted. Here, the RO provided the Veteran with another VA examination in January 2020 to determine the current severity of his bilateral hearing loss disability. That VA examination shows his puretone thresholds for the right ear, in dB, were 35dB at 1000Hz; 50dB at 2000Hz; 70dB at 3000Hz; and 75dB at 4000Hz, with an average of 58dB. Puretone thresholds for the left ear, in dB, were 40dB at 1000Hz; 55dB at 2000Hz; 60dB at 3000Hz; and 65dB at 4000Hz, with an average of 55dB. Speech discrimination scores revealed speech recognition ability of 64 percent for the right ear and 88 percent for the left ear. Applying his average dB and speech discrimination scores to Table VI, his right ear yields a level VI hearing loss and his left ear yields a level II hearing loss. Here, his right ear is the worser ear and his left ear is the better ear. Applying these results to Table VII, his bilateral hearing loss disability, the Board again finds that his bilateral hearing loss results in a 10 percent disability rating. As the Veteran has not made any specific assertions and there is no evidence to the contrary, the Board finds January 2020 VA examination to be the most probative evidence here. To the extent that the Veteran takes issue with the rating criteria themselves, the rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns, see 38 C.F.R. § 4.86 (2018), as measured by both audiometric testing and speech recognition testing. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding "that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment"). Based on the foregoing reason, the Board finds that the Veteran is not entitled to an initial compensable rating prior to December 9, 2019 or an increased rating in excess of 10 percent thereafter. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine but finds it is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. Entitlement to service connection for a gastrointestinal disability, claimed as esophagitis, to include as due to contaminated water at Camp Lejeune is remanded. As an initial matter, the Board finds that the medical evidence reflects multiple disability diagnoses. As such, recharacterization of the Veteran's claim as one for entitlement to service connection for a gastrointestinal disability, to include esophagitis, is warranted. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) Upon review of the evidence, the Board finds that additional development is warranted before the Board can adjudicate the merits of the claims. First, the Board finds that a remand is warranted to obtain the Veteran's full service treatment records. An initial request for the Veteran's service treatment records and personnel records was made in July 2016. In a subsequent July 2016 VA e-mail correspondence between the VA regional office, a request was made to have the Veteran's c-file scanned to VBMS. It was further noted that a virtual folder exists but that it was incomplete. Although his service treatment records were uploaded in July 1976, July 2016, and August 2016, these documents contain very limited service treatment dates consisting of no more than six to 16 pages of his service treatment records. As it does not appear that his full service treatment records have been associated with the claims file, a remand is warranted to obtain his complete service treatment records. Secondly, the Veteran asserts his diagnosis of esophagitis is due to exposure to contaminated water while stationed at Camp Lejeune. The Board notes that veterans who were stationed at Camp Lejeune for more than 30 days during the presumptive period are presumed exposed to water contamination. 38 C.F.R. § 3.307 (a)(7). Here, the Veteran was stationed at Camp Lejeune from 1973 to 1975. As such the VA conceded exposure to contaminated water at Camp Lejeune in a March 2018 statement of the case. Although the Veteran's gastrointestinal diagnosis are not included in the disease subject to presumptive service connection due to contaminated water at Camp Lejeune under 38 C.F.R. § 3.309 (f), a non-presumptive disease may still be entitled to service connection on a direct basis if the medical evidence supports a relationship between that disease and exposure to contaminated water. Combee v. Brown, 34 F.3d 1039, 1043 (1994). In this regard, his claims file reflects he has a current disability of gastroesophageal reflux disease (GERD) with esophagitis, hiatal hernia, and esophageal stricture. In November 2017, the Veteran submitted a disability benefit questionnaire in support of his claim, but no medical opinion was provided. Following the August 2020 Board hearing, the Veteran submitted private medical treatment indicating that his longstanding GERD and dysphagia is "potentially triggered by exposure when in the military." The Veteran has further testified that he began to experience gastrointestinal issues shortly after separation from service. To date, however, the Veteran has not been afforded a VA examination for his gastrointestinal disorder. As the low threshold for requiring a VA examination has been met, a remand is warranted to obtain a VA examination. McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). 3. Entitlement to a total disability due to individual unemployment is remanded for referral to the Director of Compensation Service. The Board finds that the Veteran has raised unemployability during the August 2020 Board hearing. As such, entitlement to a total disability rating based on individual unemployability it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). The Veteran testified that his bilateral hearing loss disability and tinnitus disability has impacted his ability to work as a drug counselor because he had to keep asking clients to repeat themselves during intake. Generally, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. Part 3, §§ 3.340, 4.16(a). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. The Court in Ray further defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id. The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Upon review of the evidence during the relevant period on appeal, the Veteran is service connected for tinnitus rated at 10 percent, bilateral hearing loss rated at 10 percent, and a left ankle rated at 20 percent. Based on the forgoing, the Board finds that the Veteran does not have one disability rated 60 percent or more or at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, he does not meet the schedular criteria for a total disability rating based on individual unemployability. 38 C.F.R. § 4.16(a). Although the Veteran does not meet the schedular criteria, an extraschedular TDIU may be assigned in exceptional cases when the Veteran is found to be unemployable because of service-connected disabilities but does not meet the criteria for consideration of schedular TDIU; in such cases, the Board is precluded from adjudicating extraschedular TDIU without first seeking a referral to the Director of the Compensation Service. 38 C.F.R. §§ 4.16. To warrant referral for extraschedular consideration, the record must reflect some factor which takes the case outside the norm. The sole fact that the Veteran was unemployed or had difficulty obtaining employment is not enough to warrant a referral; rather, the ultimate question is whether the Veteran's combined service-connected disabilities, despite falling short of the schedular criteria for TDIU consideration, nevertheless prevented him from being capable of the mental and physical acts required by employment. 38 C.F.R. § 4.16 (b); Bowling v. Principi, 15 Vet. App. 1 (2001); Van Hoose v. Brown, 4 Vet. App. 361 (1993). During the period on appeal, his claims file reflects the Veteran retired as a fireman and more recently worked as drug counselor at a Men's Recovery Home. Upon review of the medical evidence, the Board notes his tinnitus and left ankle disability has not been found to impact his ability to work. However, in a September 2016 VA examination, it was noted that his hearing loss disability impact his ordinary conditions of daily life or ability to work stating that he reported having trouble hearing conversations especially in noise. During a September 2016 private treatment record, he further reported difficulty hearing with background noise as well as in crowded environments. Another VA examination in December 2019 further noted that his bilateral hearing loss impact his ability to work. The VA examiner noted he was working as a drug counselor and have to ask clients to repeat their statements and that it eventually led to the client requesting another counselor. His statements during the August 2020 Board hearing, is also consistent with his report in the December 2019 VA examination. He further testified that having to ask client to repeat themselves eventually led clients to complain to his supervisor. He states that he and his supervisor had a discussion and instead of being let go, the Veteran resigned because he could not hear. The Board notes the Veteran testified his gastrointestinal disability also affects his ability to obtain or maintain substantially gainful employment, however, he is not service connected for any gastrointestinal disability. Based on the foregoing evidence regarding the impact of his bilateral hearing loss on his ability to work, the Board finds that referral to the to the Director, Compensation Service, for consideration of "extraschedular" entitlement to TDIU is warranted. This matter is REMANDED for the following action: 1. The VA regional office should contact the National Archives, National Personnel Records Center (NPRC), VA Records Management Center (RMC), and any other appropriate location, to request the Veteran's complete service treatment records and military personnel records. The RO must obtain any outstanding VA or private medical treatment records related to his gastrointestinal disabilities on appeal and associate them with the claims file. If appropriate records are deemed to be unavailable, the claims file must be properly documented as to the unavailability of these records. All available records should be associated with the claims file. 2. After, schedule the Veteran for an examination. The claims file, including a copy of this remand, should be made available to the examiner, who should review it in conjunction with the prior examination and should note that review in the report. The VA examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's gastrointestinal disabilities are related to an in-service event, injury, or disease to include exposure to water contamination at Camp Lejeune. A complete and detailed rationale for these opinions should be provided for every opinion requested by the examiner. 3. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. 4. Refer the issue of entitlement to an extraschedular TDIU to the Director of the Compensation Service for consideration. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, Associate 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.