Citation Nr: 1749081	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-18 457A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama



THE ISSUES

1.  Entitlement to an evaluation in excess of 30 percent for bilateral hearing loss.

2.  Entitlement to service connection for a reaction due to an anthrax vaccination shot.



REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

B. Kuczynski, Associate Counsel 

INTRODUCTION

The Veteran served in the Alabama Army National Guard and had a period of active duty for training (ADCDUTRA) from June 1982 to September 1982 and a period of active duty from January 1988 to May 1988.  He also served on active duty in the United States Army from September 1988 to August 1982.

This case comes before the Board of Veterans' Appeals (Board) on appeal from October 2009 and June 2011 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

The Veteran had originally requested a hearing before the Board; however, he withdrew that request in February 2015.  Thus, there is no outstanding hearing request.

The Board remanded the case for further development in July 2016.  That development has been completed, and the case has since been returned to the Board for appellate review.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for a reaction due to an anthrax vaccination shot will be addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

The Veteran's hearing acuity has been, at worst, level VI in the right ear and level VII in the left ear.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 30 percent for bilateral hearing loss have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


Law and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.

Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).  Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Fenderson, 12 Vet. App. at 126-27.  In this case, continuation of the current rating is warranted based on the evidence.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits.  VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the weight of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

In this case, the Veteran is currently assigned a 30 percent evaluation for his service-connected bilateral hearing loss, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100.

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.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second.  The rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal hearing acuity through level XI for profound deafness. 

VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests.  The vertical line in Table VI represents nine categories of the percentage of discrimination based on a controlled speech discrimination test.  The horizontal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test.  The numeric designation of impaired hearing (levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss.  The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity.  For example, if the better ear had a numeric designation of level V and the poorer ear had a numeric designation of level VII, the percentage evaluation is 30 percent.  See 38 C.F.R. § 4.85 (includes Tables VI, VIA, and VII). 

Regulations also provide that in cases of exceptional hearing loss, i.e., when the puretone 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.  Each ear will be evaluated separately.  38 C.F.R. § 4.86(a).  The provisions of 38 C.F.R. § 4.86(b) further provide that 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 evaluated to the next higher Roman numeral.  

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a rating in excess of 30 percent is not warranted for the Veteran's bilateral hearing loss.  

The Veteran submitted an increased rating claim for his bilateral hearing loss in June 2009.  Thereafter, he was afforded a VA examination to evaluate his hearing loss in August 2009.  Based on the results of the examination, the RO increased the Veteran's rating to 30 percent.  On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
45
65
65
75
63
LEFT
35
55
65
75
58

Speech discrimination was 60 percent for the right ear and 56 percent for the left ear.  These audiometric findings equate to level VI hearing in the right ear and level VII hearing in the left ear.  See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, the resulting evaluation for bilateral hearing is 30 percent.  

The Board has considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment.  However, the results of the August 2009 VA examination do not demonstrate that each of the four specified frequencies in either ear is 55 decibels or more or that pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear.  Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable.  See 38 C.F.R. § 4.86(a), (b).

At an April 2014 VA examination, no puretone thresholds were recorded for the right or left ears, and the results were deemed invalid.  The examiner would not document the results, explaining that the "Veteran [had] been seen at this medical center on three separate occasions all with different results, none of which [were] felt to be reliable...responses were not reliable enough to determine the extent of the loss."  

During the December 2016 VA examination, pure tone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
Average
RIGHT
50
50
55
55
53
LEFT
50
55
55
60
55

Speech discrimination was 72 percent for the right ear and 68 percent for the left ear.  These audiometric findings equate to level V hearing in the right ear and level V hearing in the left ear.  See 38 C.F.R. § 4.85, Table VI.  When those values are applied to Table VII, the resulting evaluation for bilateral hearing is at 20 percent.  The Veteran has already been granted a 30 percent evaluation.  

The Board has again considered the provisions of 38 C.F.R. § 4.86 governing exceptional patterns of hearing impairment.  However, the audiological report does not demonstrate that each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) in either ear is 55 decibels or more or that pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear.  Therefore, the provisions of 38 C.F.R. § 4.86 are not applicable.  See 38 C.F.R. § 4.86(a), (b).

The Board has also considered the lay statements of the Veteran, his wife, his co-worker, his employer, and his representative regarding the severity of his bilateral hearing loss.  However, the Board finds that the VA examination reports are more probative, as they were based on a review of the evidence, including the Veteran's own statements, and the examinations were performed with objective testing by medical professionals with knowledge, training, and expertise.  Moreover, the assigned 30 percent evaluation is consistent with the mechanical application of the rating schedule to the numeric designations assigned based on the audiometric evaluations performed, and this evaluation is based on the current VA law and regulations in effect for evaluating this disability. Lendenmann, supra; Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017).

Therefore, the Board finds that the weight of the evidence is against an evaluation in excess of 30 percent for bilateral hearing loss.  As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49 (1990).

Lastly, the Board notes that the Veteran has already been granted a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU), to specifically include bilateral hearing loss. See August 2015 rating decision.


ORDER

Entitlement to a rating in excess of 30 percent for bilateral hearing loss on or after is denied.


REMAND

Following the prior remand, the Veteran was afforded a VA examination in December 2016 to determine the nature and etiology of any reaction to an anthrax vaccination shot in service.  The examiner addressed whether the Veteran had a scar related to any such vaccination, but did not discuss whether he had any other disability or reaction.  In this regard, the Board had noted in the remand that the Veteran reported in his September 2010 claim that he was having "reactions" to the shots.  An October 2010 VA treatment record also documented the Veteran's complaints that he had pain in his whole body since the military, stiffness, and a low sexual drive, which he attributed to an anthrax shot.  Therefore, the Board finds that an additional VA examination and medical opinion are needed.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for any disability or reaction attributable to an anthrax vaccination shot.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. 

The AOJ should also obtain any outstanding VA treatment records.

2.  After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any disability resulting from a reaction to an anthrax vaccination shot that may be present.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  

The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements.

It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

The examiner should state whether it is at least as likely as not that the Veteran currently has disability resulting from an anthrax vaccination shot in service. 

In rendering his or her opinion, the examiner should consider the October 2010 VA treatment record documenting the Veteran's complaints that he had pain in his whole body since the military, stiffness, and a low sexual drive, which he attributed to an anthrax shot.  

It should also be noted that the Veteran is already service-connected for posttraumatic stress disorder (PTSD), fibromyalgia, chronic fatigue syndrome, and erectile dysfunction.  Thus, he or she should address whether the Veteran has any other disability related to an anthrax vaccination shot.

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3.  After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ.  If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
  
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



____________________________________________
J.W. ZISSIMOS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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