Citation Nr: 21042655 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 12-34 572 DATE: July 13, 2021 ISSUES 1. Entitlement to an initial compensable disability rating for a service-connected bilateral hearing loss disability. 2. Entitlement to service connection for a bilateral leg disability (claimed as bilateral leg cramps). 3. Entitlement to service connection for hypertension. ORDER Entitlement to an initial compensable disability rating for a service-connected bilateral hearing loss disability is denied. REMANDED Entitlement to service connection for a bilateral leg disability (claimed as bilateral leg cramps) is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran's service-connected bilateral hearing loss disability, at its worst, is productive of Level I hearing acuity in both the left and right ears. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for the Veteran's service-connected bilateral hearing loss disability have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.321, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 1985 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was initially denied entitlement to service connection for a bilateral leg disability and hypertension in a rating decision from November 1992. The Veteran did not file a timely Notice of Disagreement (NOD) and those claims became final. The Veteran then filed a claim for entitlement to service connection for a sleeping disorder, which was denied in April 2007. The Veteran did not file a timely NOD and that denial also became final. The Veteran then filed to reopen the previously denied claims, in addition to a new claim for entitlement to service connection for bilateral hearing loss. In an August 2010 rating decision, the RO granted entitlement to service connection for left ear hearing loss only, at a noncompensable disability rating. Entitlement to service connection for a right ear hearing loss disability remained denied. In that same decision, the RO denied reopening the previously denied sleeping disorder, bilateral leg disability and hypertension claims. The Veteran filed a timely NOD and following a statement of the case (SOC), he submitted a VA Form 9 through his Attorney in November 2012. The Veteran requested a hearing. The Veteran then appeared before the undersigned Veterans Law Judge in a Travel Board hearing in July 2016 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran's claims file. In February 2017, the Board found that new and material evidence had been received to reopen the previously denied bilateral leg, sleep disorder, and hypertension claims. Those claims, in addition to the service connection claim for the right ear hearing loss disability, and the increased rating claim for the service-connected left ear hearing loss disability, were each remanded for further development and adjudication. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the Board remand, in a rating decision from October 2019, the RO granted entitlement to service connection for obstructive sleep apnea (claimed as a sleeping disorder), as well as entitlement to service connection for right ear hearing loss. As the grant of entitlement to service connection for obstructive sleep apnea represents a full grant of the benefit sought on appeal, the Board finds that that issue is no longer before the Board. Having said that, given the grant of entitlement to service connection for a right ear hearing loss disability, the Veteran was notified in an October 2019 SOC that his service-connected right and left hearing loss disabilities would now be evaluated together as a bilateral hearing loss disability. Thus, the Board will evaluate the issue as entitlement to an initial compensable disability rating for a service-connected bilateral hearing loss disability. This is in addition to the claims of entitlement to service connection for a bilateral leg disability and hypertension, which continued to be denied, and thus are still before the Board. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to an initial compensable disability rating for a service-connected bilateral hearing loss disability. The Veteran has generally claimed that his service-connected bilateral hearing loss disability is worse than currently rated. As noted above, the Veteran testified before the undersigned Veterans Law Judge in July 2016 that his hearing loss disability had gotten worse since his last examination in June 2010. He also testified that more recently his hearing "is getting worse." He also stated that "if he heard me talk or I hear you talk; I'll turn my head to try to listen in a little bit." The Veteran is competent to report the symptoms he experiences, such as those associated with his hearing loss disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, 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. Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. 38 C.F.R. § § 4.85, Diagnostic Code 6100. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (Hertz)). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § § 4.85 establish eleven auditory acuity levels from I to XI. Tables VI and VII as set forth in section 4.85(h) are used to calculate the rating to be assigned. In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, 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. 38 C.F.R. § § 4.86 (a). Each ear is evaluated separately. Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, 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. 38 C.F.R. § § 4.86 (b). The numeral will then be elevated to the next higher Roman numeral. Id. As noted above, the Veteran's last VA examination was in June 2010, and he had testified in his July 2016 Board Hearing that his hearing acuity had worsened since then. As such, the Veteran's claim was remanded in February 2017 for a VA examination to assess the current severity of his hearing loss disability. See, Weggenmann v. Brown, 5 Vet. App. 281 (1993); see also, Snuffer v. Gober, 10 Vet. App. 400 (1997) (a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). That VA examination occurred in May 2017. The Veteran was seen in person by a VA audiologist, and his claims file was reviewed. The examiner noted the lay statements of the Veteran, including that he has "some difficulty hearing." The Veteran's diagnosis of a bilateral sensorineural hearing loss disability was confirmed. The following table shows the objective findings of the Veteran's bilateral hearing loss disability: HERTZ 500 1000 2000 3000 4000 LEFT 35 35 50 60 60 Right 25 20 30 45 60 The average Puretone threshold was 51 Hz for the left ear and 39 Hz for the right ear. On Maryland CNC speech discrimination testing, the Veteran measured 100 percent in the both ears. The VA examiner indicated that the use of the speech discrimination score was appropriate for the Veteran. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The remainder of the Veteran's VAMC records do not contain audiological examinations that examine the current severity of his hearing loss disability. Records from 2017 to 2020 generally indicate that his hearing is "good." A record from September 2017 for an unrelated sleep apnea study notes that he does "not use hearing aids." Turning to an analysis of the available evidence, the only complete audiological findings come from the May 2017 VA examination. Applying the method for evaluating hearing loss to the results of the Veteran's available audiological evaluations show that the Veteran did not meet the exceptional pattern of hearing impairment under 38 C.F.R. § § 4.86. Moreover, the examiner certified that the use of speech discrimination test was appropriate. The May 2017 VA audiology examination report shows that the Veteran's hearing acuity demonstrated pure tone threshold average of 51 in the left ear, 39 in the right ear, and speech recognition score of 100 percent in both ears. Based on these results, the Veteran's hearing acuity is assigned to Level I for each ear according to Table VI. Level I hearing for the right ear and Level I hearing for the left ear according to Table VII reveal a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. In view of the above, an initial compensable rating for the Veteran's service-connected bilateral hearing loss disability is not warranted. See 38 C.F.R. § § 4.85, Diagnostic Code 6100. Furthermore, the Board has considered the Veteran's testimony regarding the functional impact of his hearing loss on his daily life, including his need to turn his head towards those that are speaking. However, the Board finds that the Veteran's functional impairment due to hearing loss is a disability picture that is specifically and adequately contemplated by the current schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (finding 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). For all the foregoing reasons, an initial compensable rating for the bilateral hearing loss disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, given the mechanical nature of deriving schedular ratings for hearing loss, and that the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § § 4.3. REASONS FOR REMAND To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 1. Entitlement to service connection for a bilateral leg disability (claimed as bilateral leg cramps) is remanded. The Veteran has claimed that he has a bilateral leg disability, including bilateral leg cramps, that is due to his active duty service. During the Veteran's hearing before the undersigned in July 2016, he testified that he had an injury to his left leg. He testified that he was performing PT, physical training, and I was running until my knee locked up ... and when my knee locked up, I ripped my front quadriceps in half. They examined me. I was in the hospital for a while. They decided to do physical therapy on it by using, I think it was e-stem or electroshock therapy to try to expand and contract muscle. He then testified that he still experiences pain and functional loss in both legs when it comes to "long term standing [and] walking, I mean I have a hard time walking for a long period of time." As noted above, the Veteran's claim was before the Board in February 2017. In that Decision, the Board remanded the Veteran's service connection claim because the Veteran had not been given a VA examination. The Veteran's bilateral leg disability diagnoses had to be confirmed, and an etiological opinion was to be rendered from a VA examiner. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). That VA examination then occurred in May 2017. The Veteran was seen in person, and his claims file was reviewed. The examiner only indicated that the Veteran was being seen for a left leg disability; the claimed right leg disability was not addressed. The examiner then denied that the Veteran had a current diagnosis of a left leg disability. The examiner noted that the Veteran did have an in-service left leg quadriceps injury that occurred while running in February 1990, whereby he "was treated with a knee immobilizer and therapy ... His quadricep injury healed well." The examiner then provided the following nexus opinion: It is my opinion that the previous left quadricep muscle injury occurred while in service. It is very likely that the previous left quadricep injury is a direct result of the left quadricep injury that occurred while in service and is clearly documented in the [service treatment records]. No further opinion was noted. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that the May 2017 VA examination is inadequate regarding the Veteran's claimed bilateral leg disability. To begin, the VA examiner only indicated that the exam was considering the left leg disability, even though the Veteran has claimed a bilateral leg disability. The Board also notes that the rationale provided appears positive, but it does not adequately address the question. The rationale provided essentially states that the in-service injury was a direct result of the in-service injury. Instead, the examiner was asked whether or not the Veteran has a current disability that is at least as likely as not due to his confirmed in-service injury. Furthermore, the examiner denied that the Veteran had a current diagnosis of a left leg disability, and again, the Veteran's claimed right leg disability was not discussed. The Veteran has however testified that he has a bilateral leg disability, to include cramping, that causes him pain and functional loss in his ability to stand and walk long distances. The Veteran's claimed diagnoses must therefore be confirmed pursuant to Saunders v. Wilkie. In Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Considering that the Veteran's bilateral leg disability needs to be confirmed under Saunders, and considering that the May 2017 VA examination is inadequate, the Board finds that the record is currently incomplete for determining the Veteran's claim for entitlement to service connection. A complete record is required for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be afforded a VA examination so that a diagnosis may be rendered pursuant to Saunders, and etiological opinions may then be provided. 2. Entitlement to service connection for hypertension is remanded. The Veteran has claimed that his hypertension is due to his active duty service. During the Veteran's Board hearing in July 2016, he testified that "in the military, I was diagnosed and when I exited out of the military, all my medical issues were annotated" on the separation examination. He further testified that he has been treated by his private provider, Dr. J.C., for his hypertension. As noted above, the Veteran's claim was previously before the Board, but remanded for additional development in February 2017. Specifically, the Veteran was to be given a VA examination, so that an etiological opinion could be rendered regarding his diagnosed hypertension. The Board specifically directed the VA examiner to review the records from Dr. J.C., whereby the Veteran receives private treatment for his hypertension. That VA examination occurred in May 2017. The Veteran was seen in person, and his claims file was reviewed. The examiner confirmed the Veteran's diagnosis of hypertension and noted the original diagnosis to be from 2003. The examiner then provided a negative etiological opinion, and stated that The Veteran has essential hypertension, normally well controlled on one [medication]. Less likely than not secondary to service as the Veteran did not have hypertension while in service. No further findings or rationale was provided. In consideration of the above, the Board finds that the May 2017 VA examination is inadequate. The rationale provided was brief and conclusory, and relied exclusively on the lack of in-service treatment for hypertension. See Dalton v. Nicholson, 21 Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied solely on the lack of evidence in service treatment records and ignored the Veteran's lay statements to provide negative opinion). There is also no indication that the examiner considered the testimony of the Veteran, whereby he described having hypertension and hypertensive symptoms while in service, nor were the private treatment records from Dr. J.C. considered. This was specifically requested by the Board's February 2017 remand directives. Again, because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be given an additional VA examination so that an etiological opinion may be rendered regarding his hypertension. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for a VA examination(s) (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by an appropriate clinician(s) to determine the nature and etiology of the Veteran's claimed bilateral leg disability, and his diagnosed hypertension. Additional VA examinations should be scheduled as deemed necessary. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should provide responses to the following questions: As it relates to the Veteran's claimed bilateral leg disability: (a.) the examiner is to provide a diagnosis which accounts for the Veteran's present symptoms of his claimed bilateral leg disability. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the "Functional Impact" section of the report. Then, for any/all disabilities found, address: (b.) Is it at least as likely as not (50 percent or greater) that the Veteran's claimed left and/or right leg disabilities were caused by a disease or injury in service? **Please note new case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The examiner is reminded that the Veteran has provided competent lay statements and testimony whereby he described bilateral leg pain, which has resulted in a functional impairment. July 2016 Board Hearing. The examiner is also reminded that the Veteran's in-service left leg quadriceps injury has been confirmed. As it relates to the Veteran's hypertension: (c.) Is it at least as likely as not (50 percent or greater) that the Veteran's hypertension was caused by a disease or injury in service? The examiner is asked to review the private treatment records from Dr. J.C., including a June 2010 letter that notes the Veteran is treated for "severe recalcitrant hypertension" and "essential hypertension." A detailed rationale for the opinions must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on next page.) 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Attorney should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Attorney should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.