Citation Nr: 21041876 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 19-24 857 DATE: July 10, 2021 ORDER For the rating period from April 16, 2018 to April 24, 2021, an increased disability rating in excess of 10 percent for service connected bilateral hearing loss is denied; for the rating period from April 24, 2021, a disability rating in excess of 20 percent is denied. REMANDED Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals of abdominal surgery, claimed to have been caused by an inadequate surgical procedure performed by the Department of Veterans Affairs (VA) in 1979, is remanded. FINDINGS OF FACT 1. For the rating period from April 16, 2018 to April 24, 2021, the Veteran's bilateral hearing loss manifested as no more than level IV hearing in the right ear and level V hearing in the left ear. 2. For the rating period from April 24, 2021, the Veteran's bilateral hearing loss manifested as no more than level V hearing in the right ear and level V hearing in the left ear. CONCLUSIONS OF LAW 1. For the rating period from April 16, 2018 to April 24, 2021, the criteria for an increased disability rating in excess of 10 percent for service connected bilateral hearing loss have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100. 2. For the rating period from April 24, 2021, the criteria for an increased disability rating in excess of 20 percent for service connected bilateral hearing loss have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from August 1956 to June 1960, and from February 1961 to January 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2018 VA Regional Office (RO) rating decision, which, in pertinent part, denied an increased disability rating for service-connected bilateral hearing loss in excess of 10 percent, and also denied benefits related to the 38 U.S.C. § 1151 issue on appeal. By way of history, in March 2014 the Veteran filed a claim for compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for claimed additional disability of painful and tender scar and a hernia disability, claimed as due to 1979 stomach surgery at the VA Medical Center (VAMC) in Tuskegee, Alabama. In a subsequent January 2015 rating decision, the RO denied 38 U.S.C. § 1151 benefits for a painful and tender scar and a hernia condition. In August 2016, the Veteran filed a claim for an abdomen injury related to abdominal surgery at the Tuskegee, Alabama VAMC in 1979. The RO took this as a claim to reopen the prior 38 U.S.C. § 1151 claim, and in an April 2017 rating decision, the RO reopened and then again denied the issue of 38 U.S.C. § 1151 benefits for a painful and tender scar and a hernia condition. VA received a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, from the Veteran in April 2018. Relevant to the instant matter, in the "disabilities" section the Veteran wrote "appendectomy with scar" and "appendectomy with residual issue." The RO interpreted this to be a claim for direct service connection for appendectomy residuals, and developed it as such. In a June 2018 rating decision, the RO denied the issue of service connection for history of appendectomy with residuals and scars. The Veteran subsequently appealed the June 2018 denial; however, in multiple subsequent statements throughout the course of this appeal, and in testimony at a January 2021 virtual Board hearing, the Veteran clarified that the actual issue on appeal was entitlement to benefits under the provisions of 38 U.S.C. § 1151 for residuals of an appendectomy performed by the VAMC in Tuskegee, Alabama, in 1979. In a prior February 2021 Remand, due to conflicting evidence of record, the Board found it most appropriate to frame the issue on appeal as entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals of abdominal surgery, claimed to have been caused by an inadequate surgical procedure performed by VA in 1979. This matter was previously before the Board in February 2021, at which time the issues on appeal were remanded for additional development. As to the 38 U.S.C. § 1151 benefits issue, for the reasons discussed below, the issue must once again be remanded for additional development; therefore, remand compliance as to that issue need not be further discussed at this time. Concerning the bilateral hearing loss rating issue, review of the record reflects that the Veteran received an adequate VA audiometric examination on April 24, 2021. As such, the Board finds the February 2021 remand directives were satisfied as to this issue, and the hearing loss rating issue is ripe for adjudication at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Further, the Board notes that in a May 2021 rating decision, the RO granted an increased disability rating of 20 percent for the service-connected bilateral hearing loss from April 24, 2021, the date of a VA audiometric examination. The Veteran testified at a January 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision again remands the 38 U.S.C. § 1151 benefits issue on appeal for additional development, no further discussion of the duties to notify and assist is necessary as to that issue. As to the bilateral hearing loss rating issue, concerning the duty to notify, the record reflects that the Veteran received adequate VCAA notice during the course of this appeal. Regarding the duty to assist, the record reflects that VA obtained all relevant documentation and obtained adequate VA audiometric examinations. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For these reasons, the Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. 1. An Increased Disability Rating for Bilateral Hearing Loss is Denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has thoroughly reviewed all the evidence in the Veteran's claims file and adequately addresses the relevant evidence in the instant decision. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Ratings for service-connected hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. In evaluating service connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table IV or Table VIa, whichever results in the higher numeral. Each ear is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). Rating from April 16, 2018 to April 24, 2021 VA received the report from an October 2017 private audiometric examination. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 50 50 60 LEFT 25 65 65 60 Per a corresponding Summary of Audiological Assessment, speech recognition scores conveyed speech discrimination of 72 percent in the right ear and 72 percent in the left ear; however, it is unclear from the examination report whether these speech discrimination scores were obtained via the Maryland CNC Test as required under 38 C.F.R. § 3.385. As such, while the Board has applied the speech discrimination scores recorded in the October 2017 Summary of Audiological Assessment to the pure tone thresholds recorded at that time, the Board does not find it appropriate to apply these speech discrimination scores to the later conducted testing performed by a VA examiner. Based upon the results of the October 2017 examination, a Roman numeral IV is designated for the right ear from Table V of 38 C.F.R. § 4.85 and a Roman numeral V is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection points for these categories show that the hearing loss did not exceed the levels for a 10 percent schedular rating at that time. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the October 2012 audiometric examination did not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears were not shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. The Veteran received a VA audiometric examination in May 2018. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 60 70 65 LEFT 45 65 75 75 Speech recognition scores conveyed speech discrimination of 84 percent in the right ear and 76 percent in the left ear. Based upon the results of the May 2018 examination, a Roman numeral III is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral IV is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 10 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection points for these categories show that the hearing loss did not exceed the levels for a 10 percent schedular rating at that time. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the May 2018 audiometric examination did not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears were not shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. Review of all the evidence of record does not reflect any additional audiometric testing during the rating period prior to April 24, 2021. The application of the rating schedule to the audiometric findings weighs against an increased disability rating for bilateral hearing loss in excess of 10 percent at any point during the increased rating period from April 16, 2018 to April 24, 2021. The weight of the competent and probative lay and medical evidence of record is against a disability rating in excess of 10 percent for bilateral hearing loss at any point during the increased rating period from April 16, 2018 to April 24, 2021, and an increased disability rating for bilateral hearing loss during that period is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Rating from April 24, 2021 The Veteran received a new VA audiometric examination in April 2021. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 60 65 65 LEFT 40 65 75 70 Speech recognition scores conveyed speech discrimination of 74 percent in the right ear and 72 percent in the left ear. Based upon the results of the April 2021 examination, a Roman numeral V is designated for the right ear from Table VI of 38 C.F.R. § 4.85 and a Roman numeral V is designated for the left ear. Intersecting the numeric designations to the applicable row and column for the right and left ear, a 20 percent rating is derived from Table VII of 38 C.F.R. § 4.85. The intersection points for these categories show that the hearing loss did not exceed the levels for a 20 percent schedular rating at that time. The provisions of 38 C.F.R. § 4.86(a) (exceptional patterns of hearing impairment) are not for application as the April 2021 audiometric examination did not show pure tone thresholds of 55 decibels or greater in all four of the relevant frequencies for the Veteran's ears. The provisions of 38 C.F.R. § 4.86(b) are also not applicable as both ears were not shown to manifest 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. Review of all the evidence of record does not reflect any additional audiometric testing during the rating period subsequent to April 24, 2021. The application of the rating schedule to the audiometric findings weighs against an increased disability rating for bilateral hearing loss in excess of 20 percent at any point during the increased rating period from April 24, 2021. The weight of the competent and probative lay and medical evidence of record is against a disability rating in excess of 20 percent for bilateral hearing loss at any point during the increased rating period from April 24, 2021, and an increased disability rating for bilateral hearing loss during that period is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the increased rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Further, the Board also finds that the issue of a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) has not been raised by the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS FOR REMAND 2. Entitlement to 38 U.S.C. § 1151 Benefits is Remanded. VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). One June 4, 2021, VA received a call from the Veteran informing that the abdominal scar for which he is pursing 38 U.S.C. § 1151 benefits was bleeding, and that the Veteran sought treatment from a doctor that morning. Further, the Veteran informed that a follow-up appointment was scheduled for June 23, 2021. The Veteran specifically wanted this treatment noted in the claims file as relevant to the 38 U.S.C. § 1151 issue on appeal. As the information found in these treatment records is likely relevant to, and could affect the outcome of, the 38 U.S.C. § 1151 benefits issue on appeal, the Board finds remand to obtain these outstanding abdominal treatment records to be necessary. The aforementioned matter is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning residuals of abdominal surgery. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation pertaining to the treatment of the abdominal residuals, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's abdominal surgery residuals, not already of record, for the period from March 2021. 3. Then, after any additional development deemed warranted, to include forwarding any newly received medical records to the VA examiner who rendered the April 2021 38 U.S.C. § 1151 medical opinion for an addendum opinion, readjudicate the remanded issue. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.