Veteranclaims’s Blog

February 28, 2020

Single Judge Application; evaluation of hearing loss is addressed in 38 C.F.R. § 4.85; Doucette v. Shulkin, 28 Vet.App. 366, 368 (2017); disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.” Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992);

Filed under: Uncategorized — Tags: — veteranclaims @ 5:53 pm

from decision below:

” The evaluation of hearing loss is addressed in 38 C.F.R. § 4.85 and Tables VI through VII. These provisions, unlike those for most disabilities addressed in the general schedule for rating disabilities, do not set forth specific symptoms or functional impairments corresponding to specific evaluations. Doucette v. Shulkin, 28 Vet.App. 366, 368 (2017). Rather, “disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.” Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). “

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-5642
DELMAR WINSTON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Appellant, Delmar Winston, through counsel, appeals a June 11, 2018,
Board of Veteran’s Appeals (Board) decision in which the Board denied a compensable evaluation
for bilateral sensorineural hearing loss. Record of Proceedings (R.) at 4-11. This appeal is timely,
and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and
7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990). For the reasons that follow, the Court will vacate the Board’s June 11, 2018, decision and
remand the matter on appeal for further proceedings consistent with this decision.
I. BACKGROUND
The appellant had active service from January 1965 to December 1966. R. at 412. In April
2001, he filed an informal claim for various disorders including, but not limited to, back pain, a
heart condition, hearing loss, and headaches. R. at 411. In a letter dated in December 2001, the
Louisville regional office (RO) informed the appellant that they were in receipt of his informal
claim for disability compensation benefits, and to continue processing his claim, he had to submit
a formal claim on the VA Form 21-526 that they had enclosed. R. at 409. In June 2003, the
appellant filed a formal claim for service connection for hearing loss and a ringing sensation in the
right ear. R. at 393-406. In the August 2004 rating decision, the RO, in pertinent part, denied
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service connection for sensorineural hearing loss and tinnitus in the right ear basing its decision
on the July 2004 VA audiological examination results. R. at 146, 300-03.
The appellant was afforded another VA audiological examination in August 2004, during
which he reported bilateral hearing loss and unilateral tinnitus in the right ear. R. at 295-99. He
also reported “frequent aural fullness bilaterally, especially when in enclosed spaces.” Id.
Following this evaluation, in a September 2004 rating decision, the RO granted service connection
for the appellant’s bilateral sensorineural hearing loss, and evaluated it as 0% disabling, effective
June 20, 2003. R. at 290-94. The RO also granted service connection for the appellant’s tinnitus
and evaluated it as 10% disabling, effective June 20, 2003. Id. In July 2005, the appellant
submitted another statement seeking a higher rating for his service-connected hearing loss. R. at

  1. In a January 2006 rating decision, the RO continued the 0% disability rating for the
    appellant’s service-connected sensorineural hearing loss. R. at 259-61. The appellant did not
    challenge this rating decision and it became final.
    VA treatment records dated in January 2015 reflect that the appellant underwent the
    removal of white cerumen from both his ears. R. at 98. It was noted that his right ear was sensitive
    and that the tympanic membrane was not seen clearly. Id. Treatment records dated a couple weeks
    later reflect that the appellant’s right ear was filled with old blood, and he was instructed to visit
    with an ear, nose, and throat (ENT) specialist “to [debride] the ear canal and get a good look at the
    drum.” Id. The February 2015 VA audiology consultation report reflects that the appellant
    underwent cerumen management at the VA in January 2015, “and experienced some discomfort
    in the right ear during the procedure.” R. at 96. It was noted that the appellant noticed blood on
    his pillow the following morning. Id. Although he denied any current ear drainage/blood during
    the visit, he did report “increased difficulty hearing in the right ear since cerumen management

[in]

January 2015.” Id. Results of the otoscopic examination revealed “excessive dark
cerumen/debris at the entrance into the right ear canal which was removed, without complication,
using a disposable curette.” Id. The appellant was diagnosed with “[m]ild hearing loss at 250 – 1000 Hz, with a moderate sensorineural hearing loss at 2000 – 4000 Hz, rising to mild again at 6000 to 8000 Hz” in the right ear, and “[n]ormal hearing at 250 and 6000 Hz, with a mild sensorineural hearing loss at 500 – 4000, and 8000 Hz” in the left ear. Id. In a subsequent private audiological report dated in February 2015, the appellant’s physician noted that his previous doctor had diagnosed him with tympanic membrane perforation. R. at 58.
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The appellant filed another formal application seeking a higher disability rating for his
bilateral hearing loss on March 23, 2015. R. at 251-52. He was afforded another VA audiological
evaluation in June 2015, at which time, his right and left ear puretone thresholds, in decibels, at
500, 1000, 2000, 3000 and 4000 Hertz were shown to be 35, 40, 40, 50, and 45, respectively. R.
at 153-54. When asked how his hearing loss affects the ordinary conditions of his daily life, the
appellant reported that he frequently has to ask the speaker to repeat what was said. R. at 156.
The appellant denied experiencing any new occupational or recreational noise exposure, as well any new otologic symptoms. Id.
In the June 2015 rating decision, the RO continued the 10% rating for the appellant’s
tinnitus, and informed him that this is the highest schedular evaluation allowed for tinnitus. R. at
89, 87-90. In light of the appellant’s audiometric findings at the June 2015 VA examination, the
RO also continued the 0% rating for the appellant’s bilateral hearing loss. Id. The appellant filed
a Notice of Disagreement (NOD) with this decision in July 2015, R. at 65-66, and perfected a
timely appeal of this claim in October 2015. R. at 25-26. In the June 2018 decision, the Board
reviewed the February 2015 and June 2015 audiometric findings, and determined that based on
the average pure tone thresholds and the speech discrimination scores, “[t]he preponderance of the
evidence is against finding a compensable rating since March 23, 2015, for the [appellant’s]
bilateral hearing loss.” R. at 8. The Board ultimately determined that the criteria for a compensable
rating for bilateral sensorineural hearing loss had not been met and denied the appellant’s claim.
R. at 4-11.
II. ANALYSIS
The appellant maintains that the Board failed in its duty to assist when it did not help him
develop his claim for sensorineural hearing loss, and when it failed to investigate other ear-related
diseases, injuries, or disabilities. Appellant’s Brief (Br.) at 5. Specifically, the appellant contends
that VA should have fully developed all potential claims related to the ear that were raised by the
evidence. Id. at 7. Based on the appellant’s assertions, his “hearing loss and tinnitus, combined
with other medical evidence, should have been looked at as potentially symptomatic of other
disabilities of the ear.” Id. According to the appellant, the fact that his “hearing loss is not
compensable does not mean he does not suffer from hearing loss, a symptom, which when
combined with other symptoms evidenced in [his] medical records, may indicate additional ear4
related disabilities or injuries.” Id. The appellant referenced documents in the record in which he
reported dizziness and aural fullness, R. at 146, 279, 356, as well as documents reflecting that he
was assessed with right serous otitis media, R. at 326, labyrinthitis, R. at 324, and tympanic
membrane perforation, R. at 58. The appellant also referenced the January and February 2015 VA
treatment records that address the symptoms he experienced following cerumen removal. R. at
96-98. According to the appellant, his specific request for sensorineural hearing loss does not
absolve VA of its duty to investigate other potential disability claims related to his ear. Id. at 7-8.
The evaluation of hearing loss is addressed in 38 C.F.R. § 4.85 and Tables VI through VII. These provisions, unlike those for most disabilities addressed in the general schedule for rating disabilities, do not set forth specific symptoms or functional impairments corresponding to specific evaluations. Doucette v. Shulkin, 28 Vet.App. 366, 368 (2017). Rather, “disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.” Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992). As with any issue of material fact or law, the Board must support its
disability-rating findings with an adequate statement of reasons or bases that enables the claimant
to understand the precise basis for that finding and facilitates review in this Court. 38 U.S.C.
§ 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App.
49, 56-57 (1990). To comply with these requirements, the Board must analyze the credibility and
probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
The appellant has not demonstrated how some of the records he referenced, to include the
January 1965 pre-induction medical history report, R. at 356, the December 2002 private medical
report, R. at 326, the December 2002 audiological report, R. at 392, the January 2003 letter issued
by the appellant’s private physician, R. at 324, the July 2004 VA examination report, R. at 146,
and the May 2005 private audiological evaluation, R. at 279, are relevant to his increased rating
claim. He filed his claim on March 23, 2015, R. at 251-52, which makes March 23, 2014, the
earliest possible effective date for the grant of an increased rating. See 38 U.S.C. § 5110(b). The
Court therefore cannot conclude that the Board clearly erred in failing to specifically address the
service treatment records, and medical evidence from 2002 to 2005. (“[T]he relevant temporal
focus for adjudicating an increased-rating claim is on the evidence concerning the state of the
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disability from the time period one year before the claim was filed until VA makes a final decision
on the claim.”); Francisco v. Brown, 7 Vet.App. 55, 58 (1994) (explaining that in increased-rating
claims, “the present level of disability is of primary concern”).
The Board did not, however, address the January 2015 and February 2015 VA treatment
records that discuss the cerumen management he underwent, his reports of bleeding and increased
difficulty hearing in the right ear following his procedure, and his tympanic membrane perforation.
R. at 58, 96-98. In this regard, the Board failed to investigate whether his other symptoms were
ratable under alternative means, a threshold analysis required under VA’s duty to maximize
benefits. See Bradley v. Peake, 22 Vet.App. 280, 294 (2008); see also Tatum v. Shinseki, 23
Vet.App. 152, 157 (2009). As the Court held in Morgan v. Wilkie, “VA has powerful, ready-made
schedular rating tools with which it can better adjudicate claims that include symptoms and effects
not contemplated by an applicable diagnostic code.” 31 Vet.App. 162, 167 (2019). Thus, remand
is warranted for the Board to address, in the first instance, whether the appellant’s additional earrelated
issues and symptoms are related to hearing loss and can be compensable under any relevant
statute or regulation. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the
appropriate remedy “where the Board has incorrectly applied the law, failed to provide an adequate
statement of reasons or bases for its determinations, or where the record is otherwise inadequate”).
Given this disposition, the Court need not, at this time, address any other arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)
(holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this Court in an appeal, should
the Board rule against him”). The appellant is free on remand to submit additional evidence and
argument, including the arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of
the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
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III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the
record, the Board’s June 11, 2018, decision is VACATED and the matter is REMANDED to the
Board for further proceedings consistent with this decision.
DATED: February 27, 2020
Copies to:
Kristine Huskey, Esq.
VA General Counsel (027)

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