Citation Nr: 22012233 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-23 552 DATE: March 3, 2022 ORDER Entitlement to a 40 percent rating, but not higher, for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT For the period on appeal, beginning on April 17, 2012, bilateral hearing loss was shown to be manifested by Level IX auditory acuity and left ear Level VI auditory acuity. CONCLUSION OF LAW The criteria for entitlement to a 40 percent rating, but not higher, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.3, 4.85, 4.86(a), Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1962 to September 1968. The Veteran died in December 2020. The Appellant has been substituted for the Veteran for the purpose of pursuing this appeal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In September 2021, the Appellant appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. 1. Entitlement to a rating in excess of 20 percent for bilateral hearing loss. Disability ratings are based on VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a Veteran's service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim such that the evidence is not in relative equipoise, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prior to his death, the Veteran was assigned a 20 percent rating for bilateral hearing loss effective December 11, 2009, pursuant to Diagnostic Code 6100. The current claim for an increased rating stems from an April 17, 2012, claim filing. Hearing loss disability is rated under Diagnostic Code 6100, which sets out the criteria for rating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables. 38 C.F.R. § 4.85; Acevedo-Escobar v. West, 12 Vet. App. 9 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings of defective hearing range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To rate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. Table VIa, Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average, is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, or for another reason, or when indicated under the provisions of 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. When the puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. In an April 2012 physician's note, the Veteran complained of decreased hearing in the right ear. The Veteran was found to have moderately severe to profound mixed hearing loss in the right ear and mild sloping to profound mixed hearing loss in the left ear. At a May 2012 VA examination, the Veteran complained of difficulty communicating with his wife, watching television, and listening to the radio. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were: May 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 75 5 105 105 73 82 LEFT 70 70 90 105 84 60 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(b) was shown in the left ear only. An exceptional pattern of hearing loss was not shown in the right ear. Applying the results to Table VIa to the average puretone hearing loss results in level VIII in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent rating under Diagnostic Code 6100. The Board notes that during the May 2012 examination, the examiner stated that these test results were not valid for rating purposes because it was possible that the results were subject to change with medical evaluation or treatment. The Board also finds that the right ear hearing loss of 5 decibels at 2000 Hertz is a questionable finding considering the surrounding findings and the subsequent findings in October 2017. The Board find that it is at least as likely as not that finding is in error. However, determining the correct value is not feasible and reexamining the Veteran is not possible as he is deceased. In addition, the examiner stated that the results were not valid for rating purposes. At an October 2017 examination, the Veteran complained of bilateral hearing loss. However, the Board finds the October 2017 examination to be incomplete for rating purposes, as the examiner did not use the controlled speech discrimination test (Maryland CNC) and did not certify that the use of the speech discrimination test was inappropriate at the time of the examination because of language difficulties or inconsistent speech discrimination scores. Thus, the October 2017 examination is incomplete for rating purposes. However, because the audiometric findings are all readings in excess of 55 decibels, an exceptional pattern of hearing is shown in both ears, and the findings can be used for rating in the absence of speech discrimination scores. Therefore, Table VIA can be used, applying only pure tone threshold averages. 38 C.F.R. § 4.85. The Board notes that the October 2017 examination found pure tone thresholds, in decibels, were: October 2017 HERTZ 1000 2000 3000 4000 Avg RIGHT 65 100 100 105 93 LEFT 65 75 70 80 73 The Board notes that were those finding applied using Table VIA, the resulting Roman numerals would be Level IX in the right ear and Level VI in the left ear, which would warrant a 40 percent rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. During a September 2021 Board hearing, the Appellant testified that, prior to passing, the Veteran had to wear hearing aids at all times and was difficult to communicate with. Based on the evidence above, the Board finds that a rating of 40 percent, but not higher, for bilateral hearing loss was warranted during the entire period of appeal under review. While the May 2012 results were not valid for rating purposes and contain a questionable finding that would significantly alter the findings, they were similar to the October 2017 results, and the Board finds that it is at least as likely as not that the level of hearing loss documented in October 2017 was present throughout the duration of the appeal. The Board finds that the preponderance of the competent evidence of record is against the assignment of any higher rating than 40 percent for bilateral hearing loss. The Veteran's disability must be rated on the objective findings demonstrated during audiology examination. Because the Veteran is deceased, and because of the questionable findings of the May 2012 examination, the Board has in these exceptional circumstances applied the October 2017 findings for the entire period under appeal. Hearing loss involves a mechanical application of the Rating Schedule to numeric designations assigned to official auditory results. The fact that hearing acuity is less than optimal does not, by itself, establish entitlement to a higher rating. A higher rating can only be awarded when loss of hearing has reached a specified measurable level. The level of disability needed for an increase in the assigned ratings has not been demonstrated at any point during the appeal. The Board expressly acknowledges consideration of the lay evidence of record when adjudicating this claim, including the Veteran's and Appellant's statements regarding difficulty understanding speech, conversation, the telephone, and the television. The Veteran was competent to report difficulty with his hearing. However, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran described, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint was reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. Rossy v. Shulkin, 29 Vet. App. 142 (2017). Accordingly, the Board finds that the evidence supports the assignment of a 40 percent rating, but not higher, for bilateral hearing loss for the period of the pendency of the claim. The Board also finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 40 percent for bilateral hearing loss. The evidence persuasively established that a rating higher than 40 percent was not warranted and the evidence is not in relative equipoise regarding entitlement to a higher rating. Therefore, the claim for any higher rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claims of entitlement to service connection a low back disability and entitlement to service connection for a left knee disability. The Appellant contends that the Veteran's back and left knee disabilities were caused or aggravated by a service-connected right knee disability. During a February 2013 VA examination, after review of the claims file and in person examination, the examiner opined that a low back disability was less likely as not caused by, or a result of, or aggravated by a service-connected right knee disability. The examiner explained that there was no evidence of a severe altered gait due to the service-connected disability that would cause a lumbar spine disability. The examiner also opined that the a left knee disability was less likely as not caused by, or a result of, or aggravated by a service-connected right knee condition. The examiner explained that there was no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg. The Board finds the February 2013 examination report and opinion to be based on an inaccurate factual premise, and as a result, to be inadequate for VA purposes. The examiner stated the Veteran's low back disability was less likely as not caused by, or a result of, or aggravated by a service-connected right knee disability. The examiner based that opinion on the fact that the Veteran did not have an altered gait. However, there is medical evidence of the Veteran having an altered gait throughout the period of the appeal. Therefore, the Board finds the February 2013 VA examination relied on a factually inaccurate premise that the Veteran did not have an altered gait. Additionally, by not acknowledging the Veteran had an altered gait, the examiner did not properly assess the left knee disability. As a result, the Board finds the February 2013 VA examination report to be incomplete. That is a pre-decisional duty to assist error. Therefore, the Board finds that remand is necessary for an adequate etiology opinion regarding the low back and left knee disabilities. Accordingly, because the Veteran's back and left knee disabilities may have been caused by service, the Board finds that a VA opinion to determine any relationship between the Veteran's disabilities and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Request the Appellant identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all of the Veteran's claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Appellant that are not currently of record. At a minimum, obtain any outstanding VA treatment records. All attempts to obtain records must be documented in the claims file. 2. Then, obtain a VA medical opinion from a medical doctor that diagnoses and determines the nature and etiology of low back and left knee disabilities. The examiner must review the claims file, including this Remand, and should indicate review of the file in the report. The examiner should diagnose all low back and left knee disabilities found or shown in the record during the pendency of the claim. For each back and left knee disability diagnosed, to include pain resulting in functional loss, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that each back and left knee disability is etiologically related to active service or any event, disease, or injury during service, including whether any back and left knee disability (1) began during active service, (2) manifested as back or knee arthritis within one year after separation from service, (3) was noted during service with continuity of the same symptomatology since service, (4) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include an altered gait caused by the right knee disability, or (5) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for any of the service-connected disabilities, to include an altered gait caused by the right knee disability. Please cite to any evidence to support a finding of back or knee arthritis within one year following separation from service. Also note the findings of altered gait in the medical records. The examiner should address the lay statements, including hearing testimony, regarding the claimed disabilities and their etiology and symptoms during and since service. A clearly stated rationale for each opinion offered should be provided and cannot be based on the lack of a record of the claimed disability in service. In writing the report, the examiner should refer to any service medical records indicating treatment in service for any of the claimed disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.