Citation Nr: 25005131 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 20-07 515 DATE: April 16, 2025 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss prior to August 31, 2023, is denied. Entitlement to a rating in excess of 30 percent disabling for bilateral hearing loss beginning August 31, 2023, is denied. REMANDED Entitlement to an initial compensable disability rating for asbestosis prior to August 21, 2023, and in excess of 30 percent disabling from that date is remanded. Entitlement to service connection for bilateral cataracts is remanded. FINDINGS OF FACT 1. During the period prior to August 31, 2023, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear. 2. During the period beginning August 31, 2023, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level VI in the right ear and no worse than Level VI in the left ear. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss prior to August 31, 2023, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 30 percent for bilateral hearing loss beginning August 31, 2023, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decision by a Department of Veterans Affairs (VA) regional office, the Agency of Original Jurisdiction (AOJ) in this case. In both March 2022 and December 2024, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. Most recently this case was before the Board in August 2022, at which time it was remanded for additional development. The Board finds there has been substantial compliance with the remand directives regarding the issue of higher ratings for bilateral hearing loss and will proceed to adjudication with that issue. Stegall v. West, 11 Vet. App. 268 (1998). Finally, the issue of entitlement to service connection for a cardiac disability was also remanded in August 2022. In an interim January 2024 rating decision, service connection for coronary artery disease was granted effective June 4, 2018, the date of the Veteran's original claim of service connection. Service connection was also granted as directly related to service. Accordingly, the issue is no longer before the Board. See Johnson (Robert) v. Collins, No. 23-7589 (March 26, 2025); see also Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.? Separate Diagnostic Codes identify the various disabilities.? 38?C.F.R. Part 4.? When rating a service-connected disability, the entire history must be borne in mind.? Schafrath v. Derwinski, 1?Vet. App.?589 (1991).? Where there is a question as to which of two 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.???????????? 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 concern.? See Francisco v. Brown, 7?Vet. App.?55, 58 (1994).? Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.? Hart v. Mansfield, 21?Vet. App.?505 (2007).??? Hearing Loss The Veteran is seeking higher initial ratings for bilateral hearing loss, which is rated as noncompensably disabling (0 percent) from June 4, 2018, and as 30 percent disabling from August 31, 2023, under 38?C.F.R. §?4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the Rating Schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness.? 38?C.F.R. §?4.85, Tables VI and VII.? An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more.? 38?C.F.R. §?4.86(a).? In that situation, 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.? Further, when the average 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, and that numeral will then be elevated to the next higher numeral.? 38?C.F.R. §?4.86(b).????? At the October 2018 VA examination, pure tone thresholds for air conduction, in decibels, were as follows:???? ??????? ?????? ?????? HERTZ????? ?????? ?????? ?????? 500????? 1000????? 2000????? 3000????? 4000????? RIGHT????? 40 40 60 65 75 LEFT???? 35 40 50 60 60 Pure tone decibel loss averages (1000-4000 Hertz) for air conduction were 60 decibels in the right ear and 52.5 decibels in the left ear.? The Veteran's Maryland CNC Word List speech recognition score was 92 percent in the right ear and 88 percent in the left ear.?An exceptional pattern of hearing loss was not shown. 38?C.F.R. §?4.86. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear.?Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38?C.F.R. §?4.85, Table VII, equates to a noncompensable (0 percent) disability rating under Diagnostic Code 6100. At the March 2022 videoconference hearing, the Veteran testified that his hearing had gotten worse since his last VA examination. He testified that he could not hear anything, and that people told him his television was too loud. He described he had problems having conversations with people and hearing the television without his hearing aids. The Veteran's sister also testified that he had difficulty hearing his phone and she would have to translate to him what someone was saying. At the August 2023 VA examination, the Veteran reported that he had a very difficult time with his hearing, and if a person was not facing him, or was at a distance, he struggled in the conversation. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). On examination, pure tone thresholds for air conduction, in decibels, were as follows:???? ??????? ?????? ?????? HERTZ????? ?????? ?????? ?????? 500????? 1000????? 2000????? 3000????? 4000????? RIGHT????? 50 60 65 85 90 LEFT????? 50 55 65 70 80 Pure tone decibel loss averages (1000-4000 Hertz) for air conduction were 75 decibels in the right ear and 67.5 decibels in the left ear.? The Veteran's Maryland CNC Word List speech recognition score was 70 percent in the right ear and 70 percent in the left ear.?An exceptional pattern of hearing loss was shown. 38?C.F.R. §?4.86 Applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level VI in the left ear.?Entering the resulting bilateral numeric designation of Level VI for the right ear and Level VI for the left ear to 38?C.F.R. §?4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100. Applying the same results to Table VIA yields Level VI in the right ear and level V in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. Here, Table VI yields the higher rating for both ears. At the December 2024 videoconference hearing, the Veteran testified that he was unable to hear people correctly in a conversation. He would have to tell people to speak louder, especially when on his phone. Based on a review of the record, the Board concludes that higher initial ratings are not warranted for the Veteran's bilateral hearing loss at any point during the period on appeal.? The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty during conversation and listening to television. The Veteran is competent to report difficulty 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. See 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. For the period prior to August 31, 2023, on October 2018 VA examination, the Veteran's right ear resulted in a numeric designation of Level II and his left ear resulted in a numeric designation of Level II. Under Table VII, a designation of Level II in both ears, warrants a noncompensable rating. For the period from August 31, 2023, on August 2023 VA examination an exceptional pattern of hearing impairment was shown in both ears. The highest resulting levels reflect the Veteran's right ear resulted in a numeric designation of Level VI and his left ear resulted in a numeric designation of Level VI. Under Table VII, for a designation of Level VI in both ears, a rating higher than 30 percent is not warranted.? The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). In addition, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all the facts should be examined to determine the date the disability first manifested. Accordingly, the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). In deciding the Veteran's claim for increase, including the effective date of the higher 30 percent staged rating, the Board has considered his lay statements including his March 2022 testimony that his hearing loss had worsened prior to August 2023. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate Diagnostic Codes, or competent to identify to what degree his disability had worsened. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In other words, the Veteran can report his subjective observation that his hearing has worsened, but he cannot say the specific degree to which it worsened in the terms (e.g. pure tone threshold loss or Maryland CNC word list testing) that would permit the Board to rate his condition from that date. Swain, supra. Indeed, here, he has only contended that his hearing worsened since his last examination, but did not give any specific information on when this was noticed. Id. Moreover, the Board is not capable of determining the severity of the Veteran's hearing loss at the time of the March 2022 videoconference hearing as it would constitute making its own medical determination. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The competent medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. Of note, the Veteran has not provided any other audiometric testing results during the nearly 8 year period on appeal; as such, the Board is left to rely on those VA examinations of record, which do not support a higher rating at any time during the period on appeal. Fenderson, supra. Accordingly, the appeal for higher staged ratings is denied. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, because otherwise the evidence is persuasively against?the assignment of higher ratings. 38?U.S.C. §?5107 (b); 38?C.F.R. §§?4.3, 4.85, 4.86.? REASONS FOR REMAND Entitlement to an initial compensable disability rating for asbestosis prior to August 21, 2023, and in excess of 30 percent disabling from that date. Regarding the issue of increased ratings for the Veteran's asbestosis, the Board remanded the claim in in August 2022 order to obtain a new examination to ascertain the current severity and manifestations of his disability. The Board finds that there has not been substantial compliance with the remand directives. Accordingly, the claim must be remanded again. Stegall, 11 Vet. App. at 268. The Board specifically directed the examiner to perform all necessary tests including pulmonary function testing, and explained that it was essential that the pulmonary function study contain the full range of results under the diagnostic criteria (FEV-1, FEV-1/FVC). While a new examination was obtained in August 2023, the Veteran failed to appear for his scheduled pulmonary function testing in December 2023. Although the August 2023 VA examiner opined that pulmonary function testing from May 2022 reflected the Veteran's current pulmonary function, the record reflects that the Veteran's respiratory condition had increased in severity since the May 2022 testing, including a diagnosis of emphysema in December 2022 and the Veteran's testimony at his second December 2024 videoconference hearing. Accordingly, the Veteran should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of his asbestosis. Entitlement to service connection for bilateral cataracts. Regarding the issue of entitlement to service connection for bilateral cataracts, the Board remanded the claim in August 2022 in order to obtain a new opinion as to whether the Veteran's cataracts are directly related to service. The Board finds that there has not been substantial compliance with the remand directives, specifically the October 2023 VA opinion obtained on remand is inadequate. Accordingly, the claim must be remanded again. Stegall, 11 Vet. App. at 268. The Board directed the examiner to address whether the Veteran's diagnosed bilateral cataracts were related to service, to include February 1965 in-service treatment for paint in his eye. While in the October 2023 VA examination obtained on remand, the VA examiner provided a negative nexus opinion, they did not address the Veteran's in-service treatment for pain in their eye. Further, the examiner did not consider the Veteran's credible lay testimony that the pain in his eyes began during service and had continued since. Accordingly, a new opinion is necessary to address the Veteran's in-service treatment for paint in his eye and to address the credible?lay?assertions?of?continuity?of?symptomatology?since service Miller v. Wilkie,?32?Vet. App.?249, 257?(2020). Additionally, at the December 2024 videoconference hearing, the Veteran testified that during service he experienced eye pain from the asbestos smoke in the air. On remand, all theories of entitlement should be addressed. On remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159; Lang v. Wilkie,?971 F.3d 1348?(Fed. Cir. 2020); Bell v. Derwinski,?2?Vet. App.?611, 613?(1992).?? The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any eye complaints since service and any respiratory complaints since June 2018 not already associated with the record. After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment records since November 2024.??????? 2. After the completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected asbestosis. Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record (and examination if needed), the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. All necessary tests and studies to complete the Disability Benefits Questionnaire (DBQ) should be completed, to specifically include pulmonary function tests. It is essential that the pulmonary function study contain the full range of results necessary to rate the disability under the diagnostic criteria (FEV-1, FEV-1/FVC). If the pulmonary function study cannot be performed, the examiner must explain why. 3. After the completion of (1), the AOJ should obtain an addendum opinion from an appropriate provider, on the likely etiology of the Veteran's diagnosed bilateral cataracts. Copies of all pertinent records should be made available to the examiner for review. The examiner should address whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diagnosed bilateral cataracts had its onset during his active duty service, is otherwise related to an in-service injury, event, or disease during his active duty service, to include February 1965 in-service treatment for paint in his eye, or as due to exposure to asbestos during service? Why or why not????? The examiner must consider and discuss as necessary the Veteran's lay testimony that pain in his eyes began during his active duty service and has continued since.? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 4. The AOJ must document all actions taken to schedule the examinations and opinions discussed above, to include placing a copy of the letter notifying the Veteran regarding the date, time, and location of any examination scheduled, into the claims file. 5. After this development has been completed, readjudicate the claim. Issue a Supplemental Statement of the Case (SSOC) for any benefit not granted in full. Then, return the appeal to the Board. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Struening, 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.