Citation Nr: 1751735 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-15 566A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable rating for bilateral hearing loss. 2. Entitlement to an initial compensable rating for allergic rhinitis with post-surgical excision of nasal polyps and deviated septum prior to February 29, 2008. 3. Entitlement to a rating in excess of 30 percent, for allergic rhinitis with post-surgical excision of nasal polyps and deviated septum from February 29, 2008. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1973 and from October 1980 to October 1984. These matters are before the Board of Veterans' Appeals (Board) on appeal from the rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a December 2005 rating decision, service connection was granted for allergic rhinitis with post-surgical excision of nasal polyps and deviated septum and a noncompensable rating was assigned, effective June 13, 2005. In a September 2006 rating decision, the RO continued a noncompensable rating for service-connected allergic rhinitis. By operation of 38 C.F.R. § 3.156(b), the appeal stems from both of these rating actions. In an August 2008 rating decision, the RO increased the rating for allergic rhinitis to 30 percent, effective February 29, 2008. As this constituted less than the maximum benefit allowed by law and regulation, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran requested a Board hearing in his May 2009 substantive appeal, but later withdrew his request in September 2011 correspondence. The Board remanded these claims in June 2016. FINDINGS OF FACT 1. For the entire appeal duration, the Veteran has had, at worst, Level I hearing in both ears.01 2. Prior to December 13, 2006, the Veteran's allergic rhinitis was not manifested by greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side, and without polyps. 3. From December 13, 2006, the Veteran's allergic rhinitis was manifested with polyps. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2016). 2. The criteria for an initial compensable rating for allergic rhinitis prior to December 13, 2006 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.97, Diagnostic Code 6522 (2017). 3. The criteria for a 30 percent rating, and no higher, for allergic rhinitis are met from December 13, 2006. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.97, Diagnostic Code 6522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher Ratings Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C.A. § 1155 (West 2014). Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1 (2017). When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation 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 (2017). After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West 12 Vet. App. 119, 126 (1999). Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings apply to both initial and increased rating claims. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Bilateral Hearing Loss The Veteran seeks a compensable rating for bilateral hearing loss. Hearing loss ratings range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with average hearing thresholds determined by pure tone audiometric testing at frequencies of 1000, 2000, 3000 and 4000 cycles per second. "Puretone threshold average" is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 Hertz divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017). The rating schedule at 38 C.F.R. § 4.85 establishes eleven auditory acuity levels, designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect. Under certain exceptional patterns of hearing impairment, auditory acuity levels may be calculated using either Table VI, as described above, or Table VIA, which derives a Roman numeral designation based solely on the pure tone audiometry test. 38 C.F.R. § 4.86 (2017). However, as the Veteran has not demonstrated these exceptional patterns of hearing impairment, these criteria are not applicable in this case. In December 2006, the Veteran was afforded a VA fee basis examination. The Veteran reported that his hearing loss did not affect his daily activities. Pure tone threshold, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 20 25 50 65 40 100 LEFT 15 15 60 90 45 90 These results corresponded to Level I hearing in the right and left ears, pursuant to Table VI. Pursuant to Table VII, these Levels result in a 0 percent evaluation. At a September 2007 VA fee basis examination; the Veteran again reported that his hearing loss did not affect his daily activities. Pure tone threshold, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 25 20 45 65 39 100 LEFT 15 20 65 85 46 92 These results corresponded to Level I hearing in the right and left ears, pursuant to Table VI. Pursuant to Table VII, these Levels result in a 0 percent evaluation. A private audiogram conducted in January 2008 at the Hear on Earth Hearing Care Center revealed the Veteran's chief complaint is having to ask people to repeat themselves, and constantly having to turn the volume of the TV up. He also states having difficulties in the presence of background speech it seems harder to understand speech. Pure tone threshold, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 40 40 60 75 53.75 100 LEFT 20 30 70 85 51.25 100 The Board is unable to determine whether the Maryland CNC word list was used in this evaluation and whether the examination was conducted by a state-licensed audiologist. Regulations require that an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. See 38 C.F.R. §4.85 (a). However, even if the Board were to assume that these requirements were met, these results correspond to Level I hearing in the right and left ears, pursuant to Table VI. Pursuant to Table VII, these Levels result in a 0 percent evaluation.15 At a January 2010 VA fee basis examination; the Veteran reported that his hearing loss did not affect his daily activities. Pure tone threshold, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 25 20 65 70 45 98 LEFT 20 25 60 85 48 96 These results corresponded to Level I hearing in the right and left ear, pursuant to Table VI. Pursuant to Table VII, these Levels result in a 0 percent evaluation. An August 2013 VA examination pure tone threshold, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 20 30 65 70 46 96 LEFT 20 25 65 85 49 100 These results corresponded to Level I hearing in the right and left ear, pursuant to Table VI. Pursuant to Table VII, these Levels result in a 0 percent evaluation. A December 2014 VA examination, the Veteran reported trouble hearing in all situations, on the phone, and soft spoken people. Pure tone threshold, in decibels, were as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 15 20 65 75 44 96 LEFT 20 25 70 85 50 96 These results corresponded to Level I hearing in the right and left ear, pursuant to Table VI. Pursuant to Table VII, these Levels result in a 0 percent evaluation. Based on the results of the audiological evaluations discussed above, the Veteran's bilateral hearing loss has not approximated the criteria for a compensable rating at any time during the appeal period. The Board does not discount the difficulties the Veteran has with his auditory acuity. However, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) Moreover, 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. Doucette v. Shulkin, 28 Vet. App. 377 (2017). The Veteran's hearing loss does not produce any other functional effects not contemplated by the rating schedule. See id. Accordingly, an initial compensable rating for bilateral hearing loss is not warranted. There are no additional expressly or reasonably raised issues presented on the record. Allergic Rhinitis The Veteran seeks a higher rating for his chronic rhinitis. He reports symptoms of persistent nasal congestion, sneezing, and sinus headaches. The Veteran's allergic rhinitis is currently rated noncompensable prior to February 29, 2008 and at 30 percent thereafter under 38 C.F.R. § 4.97, Diagnostic Code 6522. Under Diagnostic Code 6522, a 10 percent rating is assigned for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. Id. A 30 percent rating is assigned for allergic or vasomotor rhinitis with polyps. Id. Review of the file reflects a history of chronic allergic rhinitis with polyp surgery. VA medical records in early 2005 show complaints of nasal obstruction suspected to be polyps. Private clinical records dated in March 2005 also reflect a complaint of worsening nasal obstruction and loss of smell. On examination, he was observed to have a left-sided nasal deflection with a right nasal cavity filled with polyps. Clinic biopsy was consistent with regular nasal polyps. There was a small degree of polypoid tissue in the left middle meatus. The diagnosis was nasal polyposis and the Veteran underwent a nasal septoplasty. At an August 2005 VA examination, the Veteran reported allergic rhinitis symptoms included sneezing, clear nasal discharge, tearing, and postnasal drip. Historically, the Veteran underwent removal of extensive nasal polyps and noticed improvement in breathing, three years prior. The examiner reviewed an earlier computed tomography (CT) scan which indicated the presence of sinusitis and opined he had seasonal allergic rhinitis. No obstruction or nasal polyps were noted upon examination. Based on the only evidence of record during this period, the Board finds that the Veteran's symptoms are consistent with the 0 percent rating initially assigned for allergic rhinitis in the December 2005 rating decision. To obtain a higher rating for allergic rhinitis under Diagnostic Code 6522, it is necessary to show greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side; or rhinitis polyps. Such have not been shown here; thus, a higher rating is not warranted. There is no medical evidence to the contrary. Beginning in December 13, 2006, however, a December 2006 VA examination shows an examiner diagnosed the Veteran with hyperemic nasal mucosa with a cloudy nasal discharge, and nasal polyps with a 10 to 15 percent obstruction of nasal passage. A December 2009 VA examination indicated the Veteran had 70 percent left nasal obstruction and 30 percent right nasal obstruction, but without polyps present. No rhinoscleroma, granulomatous infections, pharynx-related, or larynx-related issues were noted. The examiner opined the Veteran had permanent hypertrophy of turbinates, but objective findings lacked greater than 50 percent obstruction bilaterally or complete obstruction on one side. The Veteran underwent five additional CT scans in December 2009, June 2011, August 2011, September 2012, and April 2013, which found nasal polyps were present intermittently during those years. Endoscopy reports dated in July 2011 and September 2011 showed nasal polyps and chronic sinusitis. Nasal turbinates appeared normal. An August 2013 treatment record indicated the Veteran underwent seven endoscopic sinus surgeries with polyps. The Veteran had normal nasal turbinates and nasal septum. The Veteran was afforded another VA examination in August 2013. The examiner found nasal polyps, but did not find obstruction greater than 50 percent of the nasal passages on both sides due to rhinitis, no complete obstruction on either side, no permanent hypertrophy of the nasal turbinates, or other forms of granulomatous conditions. A May 2014 private treatment record showed severe chronic sinus disease with bilateral sinus polyps and normal nasal turbinates. A December 2014 VA examination report indicates the Veteran was diagnosed with recurrent nasal polyps, despite multiple sinus surgeries. The examiner did not find obstruction greater than 50 percent of the nasal passages on both sides due to rhinitis, no complete obstruction on either side, no permanent hypertrophy of the nasal turbinates, or other forms of granulomatous conditions. The examiner also did not find any larynx- or pharynx-related conditions. A 30 percent rating, which is the maximum rating under the Code, is assigned for rhinitis with polyps. The 30 percent rating criteria is satisfied through an objective finding of nasal polyps at the December 2006 examination. This is the maximum schedular rating allowed under Diagnostic Code 6522. See 38 C.F.R. § 4.97 (2017). Upon review of the rating schedule, the Board finds no other code under which it would be more appropriate to evaluate the Veteran's disability. A higher 50 percent rating in DC 6523 is warranted for bacterial rhinitis. Under DC 6524 a 100 percent rating is possible for Wegener's granulomatosis. However, the competent evidence does not show the Veteran has been diagnosed with bacterial rhinitis or Wegener's granulomatosis. Thus, a higher rating under those Codes is not appropriate. Based on the evidence, a 30 percent rating, and no higher, is warranted for allergic rhinitis, post-surgical excision of nasal polyps for the entire appeal beginning December 13, 2006. A higher rating is not warranted for any time during the appeal period. There are no additional expressly or reasonably raised issues presented on the record. ORDER A compensable rating for bilateral hearing loss is denied. An initial compensable rating for allergic rhinitis with post-surgical excision of nasal polyps and deviated septum, prior to December 13, 2006, is denied. Beginning December 13, 2006 a 30 percent rating, and no higher, for allergic rhinitis with post-surgical excision of nasal polyps and deviated septum is granted. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs