Citation Nr: 1804444	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  15-42 479	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1. Entitlement to an increased disability rating for bilateral hearing loss, currently rated as 40 percent disabling.

2. Entitlement to an increased (compensable) disability rating for dysfunction of the right middle and inner ear, previously described as right ear otitis media with myringotomy, and currently described as Eustachian tube dysfunction.


REPRESENTATION

Appellant represented by:	Mary Anne Royle, Attorney


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from June 1978 to September 1979.

These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In a February 2011 rating decision, the RO denied service connection for left ear hearing loss. The RO continued a 0 percent disability rating for right ear hearing loss and a 0 percent disability rating for Eustachian tube dysfunction.

In a May 2017 decision, the Board granted service connection for left ear hearing loss. The Board remanded to RO the issue of the rating for right ear hearing loss for the RO to reconsider after the effectuating the grant of service connection for left ear hearing loss and assigning a rating for bilateral hearing loss. In a June 2017 rating decision, the RO granted a 40 percent rating for bilateral hearing loss as of April 15, 2010. The issue that returns to the Board, then, is the issue of the rating for bilateral hearing loss. The Board has recharacterized that issue.

In May 2017 the Board also remanded to the RO, for additional action, the issue of the rating for Eustachian tube dysfunction. The RO has addressed the remand instructions and returned that issue to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1. From April 15, 2010, to August 13, 2015, the Veteran had hearing impairment levels of VI in the right ear and X in the left ear.

2. From August 14, 2015, the Veteran has had hearing impairment levels of V in the right ear and XI in the left ear.

3. The Veteran's service-connected right ear disorder described as Eustachian tube dysfunction does not cause his dizziness or balance problems, and has not been manifested by suppuration or aural polyps.


CONCLUSIONS OF LAW

1. From April 15, 2010, to August 13, 2015, the Veteran's bilateral hearing loss met the criteria for a 50 percent disability rating. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86 (2017).

2. From August 14, 2015, the Veteran's bilateral hearing loss has not met the criteria for a disability rating higher than 40 percent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.86.

3. The Veteran's Eustachian tube dysfunction has not met the criteria for a disability rating higher than 0 percent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.87, Diagnostic Codes 6200, 6299 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). 

The RO provided the Veteran notice in letters issued in April, June, and August 2010. In those letters, the RO notified him what information was needed to substantiate claims for service connection. The letters also addressed how VA assigns disability ratings and effective dates.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the issues that the Board is deciding at this time.

The Board finds that the appellant was notified and aware of the evidence needed to substantiate the claim, and the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The appellant actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

Hearing Loss

As noted above, the Veteran appealed for a higher rating for right ear hearing loss. After the Board granted service connection for bilateral hearing loss, his appeal has been continued to address the rating for bilateral hearing loss.

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2.

The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Under the VA rating schedule, hearing impairment is evaluated based on audiological testing, including a puretone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. The puretone threshold average is the average of the puretone thresholds, in decibels, at 1000, 2000, 3000, and 4000 Hertz, shown on a puretone audiometry test. 38 C.F.R. § 4.85. To find the appropriate disability rating based on test results, the puretone threshold average for each ear is considered in combination with the percentage of speech discrimination to establish a hearing impairment level, labeled from I to XI. See 38 C.F.R. § 4.85, Table VI. The hearing impairment levels of both ears are then considered together to establish a disability rating for the hearing loss. See 38 C.F.R. § 4.85, Table VII. 

Under 38 C.F.R. § 4.86, there are additional provisions for certain exceptional patterns of hearing impairment. When the puretone threshold at each of the frequencies 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the hearing impairment level is from either Table VI  or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Tables VI, VIa, and VII are reproduced below.


TABLE VI
Numeric Designation of Hearing Impairment
Based on Puretone Threshold Average and Speech Discrimination

Percentage of 
Discrimination		Puretone Threshold Average

0-41
42-49
50-57
58-65
66-73
74-81
82-89
90-97
98+
92-100
I
I
I
II
II
II
III
III
IV
84-90
II
II
II
III
III
III
IV
IV
IV
76-82
III
III
IV
IV
IV
V
V
V
V
68-74
IV
IV
V
V
VI
VI
VII
VII
VII
60-66
V
V
VI
VI
VII
VII
VIII
VIII
VIII
52-58
VI
VI
VII
VII
VIII
VIII
VIII
VIII
IX
44-50
VII
VII
VIII
VIII
VIII
IX
IX
IX
X
36-42
VIII
VIII
VIII
IX
IX
IX
X
X
X
0-34
IX
X
XI
XI
XI
XI
XI
XI
XI



	(CONTINUED ON NEXT PAGE)


TABLE VIa
Numeric Designation of Hearing Impairment Based Only on
Puretone Threshold Average

Puretone Threshold Average
0-41
42-48
49-55
56-62
63-69
70-76
77-83
84-90
91-97
98-104
105+
I
II
III
IV
V
VI
VII
VIII
IX
X
XI


Table VII
Percentage Evaluations for Hearing Impairment

LEVEL OF HEARING
IN BETTER EAR
XI 
100* 










X 
90 
80 









IX 
80 
70 
60 








VIII 
70 
60 
50 
50 







VII 
60 
60 
50 
40 
40 






VI 
50 
50 
40 
40 
30 
30 





V 
40 
40 
40 
30 
30 
20 
20 




IV 
30 
30 
30 
20 
20 
20 
10 
10 



III 
20 
20 
20 
20 
20 
10 
10 
10 
0 


II 
10 
10 
10 
10 
10 
10 
10 
0 
0 
0 

I 
10 
10 
0 
0 
0 
0 
0 
0 
0 
0 
0 
 
XI
X
IX
VIII
VII
VI
V
IV
III
II
I
					LEVEL OF HEARING IN POORER EAR

*  Entitled to special monthly compensation under 38 C.F.R. 3.350. [64 FR 25206, May 11, 1999] 

The RO established service connection for the Veteran's bilateral hearing loss effective April 15, 2010. In a VA audiological evaluation in May 2010, puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
55
70
75
80
LEFT
90
105
105
105

Speech recognition scores were 76 percent in the right ear and 60 percent in the left ear. The puretone threshold averages were 70 decibels in the right ear and 101 decibels in the left ear. Considering Tables VI and VIa, the right ear hearing impairment level was VI, and the left ear hearing impairment level was X. The test results were consistent with a 50 percent rating for bilateral hearing loss.

In a VA audiological evaluation in August 2015, puretone thresholds, in decibels, were as follows:




HERTZ



1000
2000
3000
4000
RIGHT
60
65
65
70
LEFT
110
110
110
110

Speech recognition scores were 84 percent in the right ear and 0 percent in the left ear. The puretone threshold averages were 65 decibels in the right ear and 110 decibels in the left ear. Considering Tables VI and VIa, the right ear hearing impairment level was V, and the left ear hearing impairment level was XI. The test results were consistent with a 40 percent rating for bilateral hearing loss.

Based on the test results, the Veteran's bilateral hearing loss warrants staged ratings of 50 percent initially, from April 15, 2010, to August 13, 2015, and 40 percent from August 14, 2015, the date of the more recent testing. The Board grants the higher earlier rating and denies a rating higher than 40 percent for the more recent period. Higher ratings require greater impairment levels.

When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2017); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1).

The Veteran's hearing loss has not required frequent hospitalizations. He has not indicated that it has markedly interfered with his employment. The rating criteria appropriately address the effects of that disability. Therefore, it is not necessary to refer the issue of ratings for that disability for consideration of extraschedular ratings.

The Court has indicated that VA must consider, in an increased rating claim, whether the record indirectly raises the issue of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2013 the Veteran directly raised a claim for a total disability rating based on individual unemployability. In August 2016 he withdrew that claim. The hearing loss rating claim thus does not indirectly raise the issue of unemployability.

Eustachian Tube Dysfunction

The Veteran is seeking a higher, compensable disability rating for a service-connected right ear disorder. That disorder involves a history of dysfunction of the right middle and inner ear. As noted above, that disorder previously was described as right ear otitis media with myringotomy, and currently is described as Eustachian tube dysfunction. The Veteran contends that the manifestations of that disorder include dizziness and loss of balance. He is appealing for a rating that considers those manifestations.

The RO has evaluated the disorder under 38 C.F.R. § 4.87, Diagnostic Codes 6299 and 6200, that is, as analogous to Diagnostic Code 6200. Diagnostic Code 6200 is for chronic suppurative otitis media, mastoiditis, cholesteatoma, or any combination. That code provides for a 10 percent rating during suppuration, or with aural polyps. A note under that code states that VA is to evaluate separately hearing impairment and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull.

In an August 2015 VA examination, the Veteran reported having episodes of vertigo. The examination report does not indicate whether the reported vertigo episodes are related to the Veteran's service-connected Eustachian tube dysfunction. In a March 2016 letter, VA otolaryngologist Dr. H., who has treated and examined the Veteran, stated that testing has shown that the Veteran has a vestibular disorder that produces poor balance and has unpredictable attacks of imbalance, dizziness, and vertigo. Dr. H. did not address whether the balance problem and dizziness are part of or otherwise related to the service-connected Eustachian tube dysfunction.

In the May 2017 remand, the Board instructed that the RO receive a new VA examination to address the question as to whether the Veteran's current dizziness and balance problems are manifestations of his service-connected Eustachian tube dysfunction.

In September 2017 a VA otolaryngologist, A. Y., M.D., reviewed the Veteran's claims file and examined the Veteran. Dr. Y. expressed the opinion that it is less likely than not that the Veteran's dizziness, balance impairment, and vestibular disorder is due to his service-connected Eustachian tube dysfunction. In explanation, Dr. Y. that in 1979, during the Veteran's service, his persistent right ear otitis media was addressed by myringotomy with insertion of a pressure-equalizing tube. Dr. Y. noted that the tube was removed in 1980. She found that medical records contained no documentation of recurrent otitis media since the removal of the tube. She further noted that a present audiometric test, including tympanometry, confirmed normal middle ear function in both ears. She found that there was no evidence of Eustachian tube dysfunction in either ear.

Dr. Y. based her opinion on medical records and examination findings, and her opinion is persuasive. No clinician has opined in favor of a connection between the Veteran's dizziness and balance problems and his service-connected right ear disorder. As the preponderance of the evidence is against such a connection, the rating for the disorder is not to be based on his dizziness and balance problems. Nor is there any evidence that he has right ear suppuration or aural polyps, such as would warrant a 10 percent rating under Diagnostic Code 6200. The Board therefore denies a rating higher than the existing 0 percent rating.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470   (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316   (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77   (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428   (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377   (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

The Veteran, a lay person, lacks the requisite medical expertise and training to opine as to the extent of Eustachian tube dysfunction for VA purposes. Therefore, any statements in this regard are not probative.

The Veteran's Eustachian tube dysfunction has not required frequent hospitalizations, and he has not indicated that it has markedly interfered with his employment. Therefore, it is not necessary to refer the issue of ratings for that disability for consideration of extraschedular ratings. In addition, the contentions and information about that disorder do not indirectly raise the issue of unemployability.


ORDER

From April 15, 2010, to August 13, 2015, a 50 percent disability rating for bilateral hearing loss is granted, subject to the laws and regulations controlling the disbursement of monetary benefits.

From August 14, 2015, entitlement to a disability rating higher than 40 percent for bilateral hearing loss is denied.

Entitlement to a compensable disability rating for Eustachian tube dysfunction is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs