Citation Nr: 1754037 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 95-37 360A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for a right elbow disability. 3. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the cervical spine (neck disability). 4. Entitlement to a rating in excess of 30 percent for sinusitis with headaches. 5. Entitlement to an initial rating in excess of 10 percent for bilateral pes cavus, metatarsalgia, plantar wart right foot, plantar fasciitis, degenerative changes both great toes (foot disabilities). 6. Entitlement to an initial rating in excess of 20 percent for right shoulder osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1973 to January 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1994 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in an August 2017 Central Office hearing. A transcript of that hearing is of record. During the Board hearing, the Veteran asserted that the disability rating for service-connected Meniere's disease with tinnitus was on appeal. The Veteran filed claims for service connection of hearing loss, dizziness, facial numbness, and other issues in September 1993. In August 1994, the RO issued a rating decision denying service connection for hearing loss. The decision did not address dizziness or facial numbness. In September 1995, VA received the Veteran's notice of disagreement with the denial of service connection for hearing loss. The RO issued a statement of the case in October 1995 and the Veteran perfected his appeal with a November 1995 Form 9. At the May 1996 regional office hearing, the Veteran discussed that he did not meet the frequency requirements for hearing loss and offered an alternative diagnosis of Meniere's disease. In light of such testimony, the RO conducted development and granted service connection for Meniere's disease with tinnitus in a July 1997 rating decision. The Veteran did not appeal and there was no further action by the RO on the issue of Meniere's disease with tinnitus. The July 1997 rating decision granting service connection for Meniere's disease with tinnitus is considered a full grant of the benefit sought on appeal. The Veteran did not file a timely notice of disagreement, or correspondence that could be construed as such, to initiate an appeal of the rating assigned for Meniere's disease with tinnitus. In this regard, the Federal Circuit held that disability ratings and effective dates are downstream issues, which require a second notice of disagreement to initiate appellate review. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (1997) (stating that an NOD concerning the question of service connection cannot initiate appellate review of the downstream element of compensation level); see also Holland v. Gober, 10 Vet.App. 433, 436 (1997) (holding that the RO's award of service connection consisted of a full award of benefits and that any disagreement with the disability rating or effective date required separate NODs to place those downstream elements or issues in appellate status). The Veteran contends that he initiated an appeal for Meniere's disease when he appealed the denial of service connection for hearing loss. First, it does not appear that the Veteran believed the two conditions were the same. He specifically filed a claim for dizziness alongside his claim for hearing loss and stated in the RO hearing that he had a separate diagnosis of Meniere's disease. However, even assuming arguendo that the Veteran's appeal of the denial of service connection for hearing loss included Meniere's disease, he appealed the denial of service connection only. Once service connection for Meniere's disease with tinnitus was granted, the service connection appeal ended as a full grant of benefits and the downstream issue of an increased rating required a new notice of disagreement to initiate an appeal. See Grantham, 114 F.3d at 1158-59. As the Veteran did not appeal the rating within a year of its assignment and new and material evidence was not received prior to the expiration of the appeal period, the Board does not have jurisdiction over the issue of an increased rating for Meniere's disease with tinnitus. See id.; 38 C.F.R. §§ 3.104, 3.156. The issue of higher ratings for sinusitis with headaches, right shoulder arthritis, and bilateral foot disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In August 2017 correspondence and the Board hearing, the Veteran stated that he wished to withdraw his appeals of the denial of service connection for the right elbow and the denial of an increased rating for the neck disability. 2. The evidence does not show puretone threshold readings to satisfy the VA criteria for hearing loss disability in either ear. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals of the denial of service connection for the right elbow and increased ratings for the neck by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.385 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In August 2017 correspondence and the Board hearing, the Veteran stated that he wished to withdraw his appeals of the denial of service connection for the right elbow and the denial of an increased rating for the neck disability. By doing so, the Veteran withdrew these appeals and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals of the denial of service connection for the right elbow and denial of an increased rating for the neck, and they are dismissed. II. Procedural duties VA is required to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In this case, the Veteran's appeal originated prior to the laws establishing the notice requirements and the Veteran was not sent notice. However, the Veteran has demonstrated knowledge of the veterans claim system via various submission and Board hearing testimony such that he is not prejudiced by this lack of notice. Additionally, the Veteran has been provided with a statement of the case and several supplemental statements of the case and be provide an opportunity to respond and meaningfully participate in his appeal. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All identified, available medical records have been obtained and considered, to include VA examinations for hearing loss in August 1996 and April 2017. As such, the Board will proceed to the merits of the hearing loss issue. III. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to report symptoms and experiences observable by his senses but not to diagnose hearing loss or determine its cause as this requires specialized training to understand the complexities of the neurological system. See 38 C.F.R. § 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds the Veteran credible as his statements were detailed and consistent regarding this issue. Following a review of the evidence, the Board determines that the criteria for service connection for hearing loss have not been met. See 38 C.F.R. § 3.303. The evidence does not show current hearing loss disability for VA purposes in either ear. The VA regulation addresses the specific threshold readings required by VA to find hearing loss disability. The requirements are one puretone threshold reading of 40 decibels or greater or at least three readings of 26 decibels or greater at the 500, 1000, 2000, 3000, and 4000 Hertz frequencies; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The August 1996 examiner recorded the Veteran's hearing thresholds at the 500, 1000, 2000, 3000, and 4000 Hertz frequencies as 0, 5, 10, 5, and 0 decibels in the right ear and 10, 0, 5, 10, and 15 decibels in the left ear. No frequency had a threshold reading above 25 decibels. No speech discrimination scores were recorded in the examination report. At the April 2017 examination, the Veteran's hearing thresholds were recorded at the 500, 1000, 2000, 3000, and 4000 Hertz frequencies as 5, 5, 10, 10, and 25 decibels in the right ear and 0, 10, 15, 25, and 35 in the left ear. Only one frequency had a threshold reading of 26 decibels or greater and no frequency had a reading of 40 decibels or greater. The 2017 examiner indicated that the puretone test results were valid and accurate for rating purposes. Speech discrimination scores (via Maryland CNC Word list) were 100% in the right ear and 94% in the left ear. The Veteran consistently reported having trouble hearing since service, particularly in group settings. He asserts that he has a hearing loss disability, because the April 2017 examiner diagnosed sensorineural hearing loss in both ears. Alternatively, the Veteran contends that he has "hidden hearing loss" which cannot be detected with audiometric readings. In support of his contention, he submitted research revolving around a study of animals that showed synaptic (hidden) hearing loss can exist even when auditory thresholds are normal. The research study did not address the Veteran's specific hearing but instead was conducted on animals. The study also noted that there is currently no method of testing people for this type of auditory damage. A finding that the Veteran had synaptic hearing loss would be inconclusive and speculative as there is no way to medically confirm or test for it. For the foregoing reason, to include the lack of human studies and the lack of specificity to this Veteran, the Board places little, if any, weight on this study. The examiner's notation of hearing loss and the contention that the Veteran may have "hidden" hearing loss have been considered. However, more than a hearing loss diagnosis is needed for service connection; puretone audiometric readings of a certain level are needed to satisfy the regulatory requirements for VA purposes of disability. See Hensley v. Brown, 5 Vet. App. 155, 158-59 (1993) (noting that entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385 and stating that this section "operates to establish when a measured hearing loss is (or, more accurately, is not) a "disability" for which compensation may be paid, provided that the requirements for service connection are otherwise met"); see also Palczewski v. Nicholson, 21 Vet. App. 174, 178-79 (2007) (stating that the Secretary implemented 38 C.F.R. § 3.385 to define what constitutes a hearing disability ... "the Court will afford the Secretary's definition contained in § 3.385 substantial deference"). In short, the Board finds that the Veteran's contentions and the study referenced above are outweighed by the competent and credible VA examination reports that were conducted by personnel with specialized training in audiology. In sum, the Veteran's puretone thresholds do not satisfy the regulatory requirements for hearing disability, and service connection cannot be established without a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 C.F.R. §§ 3.303, 3.385. As such, the claim of hearing loss must be denied. ORDER The appeal of the denial of service connection for the right elbow is dismissed. The appeal of the denial of an increased rating for the neck is dismissed. Service connection for hearing loss is denied. REMAND First, to address the claims of increased ratings for the right shoulder and feet, the Veteran contends that he filed an appeal on those ratings. The record shows that an October 1996 rating decision granted service connection for the feet and right shoulder assigning a 10 percent and 20 percent rating respectively, both effective February 1, 1994. During the Board hearing, the Veteran testified that he received notice of the grant and the initial rating with a letter saying that the decision was a full grant of benefits. In this regard, the Veteran testified that in response to the letter stating the right shoulder and feet a "maxed" that he wrote "a letter, and it should be in there, and say, well, I think you're wrong, because I don't think 30 percent was the max anyway . . and I don't think 20 was the max on the shoulder." The claims file does not reflect such a letter from the Veteran asserting disagreement with the ratings after the October 1996 rating decision. However, the record does contain a November 1996 report of contact (VA Form 119) where the author asks for the 30 percent rating for the feet to be effectuated and to issue a corrected award letter. Next, the RO issued a supplemental statement of the case adjudicating the foot rating in March 1997. The Board finds the totally of the record supports the Veteran's contention that he filed a notice of disagreement with the ratings assigned for the right shoulder and foot disabilities, to include consideration of the Veteran's testimony, the report of contact, and subsequent action by the AOJ. However, the RO has not issued a statement of the case on the issues of increased ratings for the right shoulder and foot disabilities. The March 1997 supplemental statement of the case addressing the feet is insufficient. See 38 C.F.R. § 19.31(a) ("In no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or to respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case."). Without a statement of the case and substantive appeal, the Board has no discretion, and the claims for increased ratings for the right shoulder and feet must be remanded. 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238, 240 (1999). Next, to address sinusitis, an additional medical opinion is needed to properly adjudicate the Veteran's disability rating. The Veteran is service connected for sinusitis with headaches and rated 30 percent disabled under Diagnostic Code 6513. 38 C.F.R. § 4.97. Diagnostic Code 6513 uses the General Rating Formula for Sinusitis, which includes consideration of sinus headaches. The Veteran contends that his headaches are severe with frequent completely prostrating attacks productive of economic inadaptability and he should be awarded a 50 percent rating under 38 C.F.R. § 4.124a, DC 8100. As headaches are contemplated by the 30 percent rating under Diagnostic Code 6513, the Veteran would need to present a separate set of headaches to avoid pyramiding with a duplicate rating under Diagnostic Code 8100. See Esteban v. Brown, 6 Vet. App. 259, 262; 38 C.F.R. § 4.14. Indeed, the Veteran testified during the Board hearing that he gets sinusitis with cold symptoms, earaches, and headaches but the daily, debilitating headaches are completely separate. The VA examiner in April 2017 recorded the Veteran's report of sinus headaches five to six times per week that can be incessant and debilitating if he does not take medication. However, the examiner found that the Veteran's sinusitis disability did not cause any non-incapacitating or incapacitating episodes. The July 1996 examination shows bifrontal headaches often associated with sinus drainage and upper respiratory infections, occurring approximately three times per week, and lasting for several hours. The examiner diagnosed headaches secondary to muscle tension. In light of the medical and lay evidence noted above, the Board finds that, on remand, the Agency of Original Jurisdiction should schedule the Veteran for a headache examination and ask the examiner to opine as to whether the Veteran's daily headaches are part of his sinusitis disability and if so, record the nature and severity of those headaches; or are they separate. Accordingly, the case is REMANDED for the following actions: 1. Issue an SOC on the issues of increased ratings for the right shoulder and foot disabilities. All pertinent evidence of record should be considered. See 38 C.F.R. §§ 19.29-19.30. Further, advise the Veteran that a substantive appeal has not been received concerning these issues, and of the requirements for submitting an adequate and timely substantive appeal, as noted in 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). 2. Obtain and associate with the claims file any outstanding VA treatment records. 3. After obtaining any records, schedule the Veteran for a headache examination. The examiner should review the claims file, record all objective and subjective symptoms, and address the following: a. Are the headaches that the Veteran experiences multiple times per week at least as likely as not related to or part of his service-connected sinusitis? If not, please explain why? b. If so, comment on whether the headaches are severe with frequent completely prostrating attacks (if untreated) productive of economic inadaptability? Consider all relevant lay and medical evidence. All opinions must be supported by a comprehensive rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. 3. If the sinusitis issue remains denied, furnish the Veteran and his representative a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs