Citation Nr: 18143533 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 10-00 944 DATE: October 19, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial disability rating higher than 0 percent for rhinitis is denied. Entitlement to a disability rating higher than 0 percent for otitis is denied. FINDINGS OF FACT 1. The Veteran does not have disabling left ear hearing impairment. His disabling right ear hearing impairment had onset at least several years after service, and is not related to noise exposure or other events in service. 2. Rhinitis has been manifested by permanent hypertrophy of turbinates, without polyps, greater than 50-percent obstruction of nasal passage on both sides, or complete obstruction on both sides. 3. The Veteran’s otitis has not been manifested by swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment, has not been followed by hearing levels worse than III in the right ear and I in the left ear, and has not been manifested by chronic suppuration or aural polyps. CONCLUSIONS OF LAW 1. In the left and right ears, hearing loss disability was not incurred or aggravated in service, and is not presumed to be service connected. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for an initial disability rating higher than 0 percent for rhinitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Codes 6522, 6523 (20170. 3. The criteria for a disability rating higher than 0 percent for the Veteran’s otitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.85, 4.87, Diagnostic Codes 6200, 6201, 6210 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Service connection for bilateral hearing loss During the Veteran’s service, he was treated for ear infection. He was exposed to noise from heavy equipment. He did not report difficulty hearing, and hearing testing did not show hearing impairment. In April 1977, shortly after his December 1976 separation from service, he submitted a claim for service connection for several disorders, including ear problems. A Department of Veterans Affairs (VA) Regional Office (RO) granted service connection, effective from separation from service, for right-sided external otitis. Under the VA Schedule for Rating Disabilities (rating schedule), otitis is evaluated based on hearing impairment. In In January 2008, the Veteran submitted a claim for service connection for left ear hearing loss in addition to right ear hearing loss. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including nervous system diseases such as sensorineural hearing loss, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For VA disability benefits purposes, impaired hearing is considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.385 does not preclude service connection for current hearing disability where hearing was within normal audiometric testing limits at separation from service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Court explained that, when audiometric test results do not meet the regulatory requirements for establishing a “disability” at the time of a veteran’s separation, the veteran may nevertheless establish service connection for a current hearing disability by submitting competent evidence that the current disability is causally related to service. In addition, the Court cited a 1988 medical treatise that stated that the threshold for normal hearing was from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. 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. § 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. On examination of the Veteran in June 1972, for entrance into service, on audiological testing the thresholds at the relevant frequencies were all 15 decibels or lower. On testing in April 1973, at those frequencies the thresholds were all 15 decibels or lower. He was treated in service for upper respiratory infections and ear infections. In March 1976, it was noted that the Veteran was exposed to noise from an air compressor and a jackhammer. On testing the thresholds were all under 15 decibels. The thresholds were better than in a reference report from 1973. On examination in November 1976, for separation from service, at all tested frequencies the thresholds were all under 15 decibels. In the medical history, the Veteran marked no for any history of hearing loss. Service examinations did not include speech recognition testing. On VA audiological examination in October 1977, the thresholds were all under 15 decibels. Speech recognition scores were 96 percent in each ear. The examiner’s finding was normal hearing bilaterally. In a December 1977 rating decision, the RO granted service connection for right-sided external otitis. In VA treatment in January 1981, the Veteran reported pressure in his ears. He submitted a request for reevaluation of his hearing. On VA hearing testing in December 1982 and February 1983, the thresholds were all 15 decibels or lower. In VA treatment in September 2007, the Veteran reported difficulty hearing from his right ear. He reported that during service he was exposed to heavy equipment noise. He related intermittent pain and pressure in his right ear. An audiologist noted mild high frequency sensorineural hearing loss bilaterally. In February 2008, VA primary care physician K. A., M.D., reported having reviewed the Veteran’s service medical records. Dr. A. found that the Veteran had tinnitus and difficulty hearing. Dr. A. noted that he had exposure to heavy equipment noise during his four years of service. Dr. A. stated that an audiologist found that he had mild high frequency sensorineural hearing loss. Dr. A. expressed the opinion that it is as likely as not that his tinnitus and sensorineural hearing loss began in service. On VA audiological examination in June 2008, the Veteran reported that he was exposed to heavy equipment noise during service. He stated that since separation from service he had not held employment and had not had significant noise exposure. On testing the thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 50 50 55 LEFT 25 15 25 25 25 Speech recognition scores were 80 percent in the right ear and 96 percent in the left ear. The examiner found that there was sensorineural hearing loss in the right ear and that hearing in the left ear was clinically normal. The examiner reported having reviewed the service medical records. The examiner expressed the opinion that it is less likely than not that noise trauma in the Veteran’s service caused his hearing loss and tinnitus. The examiner explained that on testing at separation from service he had normal hearing bilaterally. In private audiological testing in January 2011, the thresholds, in decibels, were as follows:   HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 40 45 40 LEFT 15 15 20 20 20 The examiner found hearing loss in the right ear and hearing within normal limits in the left ear. On VA examination in September 2011, an examiner found that results of hearing testing were not valid. In May 2012, VA audiologist L. R. V.-A., Aud., stated that there was no record of service entrance or separation examinations of the Veteran. Mr. V.-A. noted that the Veteran had noise exposure during service. Mr. V.-A. expressed the opinion that it is at least as likely as not that any current hearing loss had onset in service or is related to service. In June 2012, Mr. V.-A. reviewed the evidence again. He noted that the Veteran had normal hearing bilaterally on examinations in June 1972 and November 1976. He noted examination in June 2008 showed hearing loss in the right ear and normal hearing in the left ear, and that examination in 2011 showed hearing loss that was worse in the right ear. He provided the opinion that it is less likely than not that any diagnosed hearing loss is related to his military service. He noted that noise exposure can cause hearing loss, but that it usually causes similar hearing loss in both ears. Testing in 1977, 1982, and 1983 showed that the Veteran did not have disabling bilateral hearing loss within a year from his separation from service, so there is no basis to presume service connection for bilateral hearing loss. On testing during and after service, hearing in the Veteran’s left ear has not had impairment that is considered a disability for VA benefits purposes. Thus there is no left ear hearing loss disability for which service connection can be granted. In the Veteran’s right ear, testing showed normal hearing during service, and after service in 1977, 1982, and 1983. From 2007 forward evidence including testing shows right ear hearing impairment that is considered a disability for VA benefits purposes. The lack of a disability during service and for several years after argues against incurrence of a disability in service. When Dr. A. supported a nexus in 2007, he did not address testing in 1977, 1982, and 1983 that showed normal hearing. When Mr. V.-A. supported a nexus in May 2012, he formed that opinion without having reviewed testing at service entrance and separation. In June 2012, after he reviewed those records, he opined against a nexus. The opinion based on fuller evidence review, and the greater persuasive weight of the evidence, is against a nexus to service for the current right ear hearing loss disability. Therefore service connection for that disability is denied. 2. Disability rating for rhinitis The Veteran has a service-connected sinus disorder, described as left chronic maxillary sinusitis, with headaches. A 30 percent disability rating is in effect for that sinusitis. The RO granted service connection for the Veteran’s rhinitis, as secondary to the sinusitis. The RO made service connection effective March 10, 2011, and assigned a disability rating of 0 percent. The Veteran appealed that initial 0 percent rating. 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 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. 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). Under the rating schedule, allergic or vasomotor rhinitis is rated at 30 percent if there are polyps. It is rated at 10 percent without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6522. Bacterial rhinitis is rated at 50 percent with rhinoscleroma. It is rated at 10 percent with permanent hypertrophy of turbinates and with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97, Diagnostic Code 6523. On VA examination in June 2008, the Veteran reported a long history of sinusitis and rhinitis. He related rhinitis symptoms of nasal congestions, itchy nose, and watery eyes. The examiner observed normal nasal vestibule, turbinates, and septum, with no obstruction or polyps. There was septal deviation. There was no rhinoscleroma, and no permanent hypertrophy of turbinates. In VA treatment notes from December 2008 to February 2011, lists of problems continued to include rhinitis. A CT scan of the paranasal sinuses performed in June 2011 showed retention cysts at the maxillary antra, and a small left nasal spur. The nasal septum was curved to the left at its posterior aspect and to the right at its anterior aspect. On VA examination in October 2011, the Veteran reported a long history of rhinitis, with nasal congestion, excess mucus, itchy nose, sneezing, and watery eyes. The examiner found that bacterial rhinitis produced permanent hypertrophy of turbinates. The examiner found no signs of nasal obstruction. The examiner found that there was no rhinoscleroma. The Veteran reported that he was not employed. The examiner stated that the Veteran’s sinus disease and rhinitis had severe effects on exercise and moderate effects on chores. In VA treatment notes from October 2011 to April 2018, lists of problems continued to include rhinitis. The Veteran’s medical records show chronic rhinitis. In 2007 he reported a history of nasal polyps, and clinicians repeated that history in 2008. However, on examinations in 2003 and 2008, examiners found that there were no nasal polyps. On the question of whether he has nasal polyps, the clinical findings are more persuasive. The greater persuasive weight of the evidence indicates that he does not have polyps. Imaging has shown deviations of his septum, but clinicians have not found that he has greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. In 2011 an examiner found that he did not have rhinoscleroma. The manifestations of his rhinitis have not met the criteria for a rating higher than 0 percent. 3. Disability rating for otitis Soon after separation from service, the Veteran sought service connection for multiple disorders, including ear problems. The RO granted service connection, effective December 4, 1976, for an ear disorder described as right-sided external otitis. The RO assigned a disability rating of 0 percent. In October 2007 the RO received the Veteran’s claim for an increased rating for his right ear disorder, due to worsening of that disorder. He stated that his right ear disorder had worsened to the extent that he needed a hearing aid. In a July 2008 rating decision, the RO continued the 0 percent rating for the otitis. The Veteran appealed that decision. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board will consider whether a higher rating is warranted for any period since the increased rating claim was filed. Under the rating schedule, chronic otitis externa is rated at 10 percent if there is swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. 38 C.F.R. § 4.87, Diagnostic Code 6210. Chronic nonsuppurative otitis media is rated based on hearing impairment. 38 C.F.R. § 4.87, Diagnostic Code 6201. Chronic suppurative otitis media is rated 10 percent during suppuration, or with aural polyps, with hearing impairment to be rated separately. 38 C.F.R. § 4.87, Diagnostic Code 6200. 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. Tables VI 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 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] In VA treatment in February 2007, the Veteran’s auditory canals appeared clean, and tympanic membranes were intact. In September 2007, he reported hearing difficulty. A clinician stated that the tympanic membranes appeared normal. In May 2008 the Veteran’s ears had no drainage, and there was no swelling of the canals or tympanic membranes. On VA examination in June 2008, it was noted that during the Veteran’s service he had external otitis in his right ear. He reported that he had not had recent treatment for that disorder. He stated that since service he had episodes of pain in his right ear that occurred weekly and lasted for hours. He related having difficulty hearing with his right ear, and having recurrent right-sided tinnitus. He did not report right ear discharge or itching. The examiner observed that the right ear was dry. That ear was not scaly, and did not have swelling or discharge. On VA audiological examination in June 2008, testing showed hearing levels of III in the right ear and I in the left ear. Those hearing levels are consistent with a 0 percent rating for hearing impairment. In VA treatment in July 2010, the Veteran reported right ear pain without suppuration. A clinician observed evidence of mild right ear pain with manipulation. The tympanic membrane was intact, and there were no secretions. The clinician’s impression was otitis externa. In October 2010, the Veteran reported ongoing ear pain. A clinician prescribed otic drops. VA treatment records from December 2010 through February 2011 do not reflect any reports of symptoms involving the ears. In March 2011, the Veteran requested an increased rating for his otitis, asserting that the condition was worsening. On VA ear disease examination in July 2011, the Veteran reported recurrent right ear infections since 1975. The examiner found no edema, scaling or discharge in the external canal. There was no evidence of active ear disease. On VA audiology examination in September 2011, an examiner found that results of hearing testing were not valid. VA treatment records from October 2011 through April 2018 do not reflect any reports of symptoms involving the ears. The Veteran’s otitis has not been manifested by swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment, so it has not met the criteria for a rating higher than 0 percent under Diagnostic Code 6210. He has not had hearing impairment that warrants a rating higher than 0 percent, so any hearing impairment attributable to his otitis has not met the criteria for a higher rating. His otitis has not been manifested by chronic suppuration or aural polyps, so it has not met the criteria for a rating higher than 0 percent under Diagnostic Code 6200. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. J. Kunz, Counsel