Citation Nr: 18151088 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-06 156 DATE: November 16, 2018 ORDER A compensable rating prior to January 8, 2018, for service-connected hearing loss is denied. A rating in excess of 70 percent on and after January 8, 2018, for service-connected hearing loss is denied. Service connection for sinusitis is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to January 8, 2018, the Veteran had no worse than Level III hearing loss bilaterally. 2. On and after January 8, 2018, the Veteran had no worse than Level XI hearing loss in his right ear and no worse than Level IX hearing in the left ear. 3. Resolving all doubt in the Veteran’s favor, sinusitis had its onset in service. CONCLUSIONS OF LAW 1. Prior to January 8, 2018, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). 2. On and after January 8, 2018, the criteria for a rating in excess of 70 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2017). 3. The criteria for entitlement to service connection for sinusitis have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1968 to January 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2011 by a Department of Veterans Affairs (VA) Regional Office. Increased Rating Entitlement to a compensable initial rating prior to January 8, 2018, and a rating in excess of 70 percent thereafter for service-connected hearing loss The August 2011 rating decision granted service connection for right ear hearing loss evaluated as noncompensably disabling. The Veteran disagreed with such rating, as well as the denial of service connection for left ear hearing loss. The current appeal ensued, and in a February 2018 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for left ear hearing loss and assigned a 70 percent rating, effective January 8, 2018. The Veteran continues to disagree with the ratings assigned, and the Board has characterized the issue on appeal accordingly. Disability ratings are based upon VA’s Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran’s hearing loss has been evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100. This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Audiometric results are matched against Table VI to find the numeric designation, then the designations are matched with Table VII to find the percentage evaluation to be assigned for the hearing impairment. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from level I for essentially normal acuity, through level XI for profound deafness. 38 C.F.R. § 4.85. The provisions of Section 4.86 address exceptional patterns of hearing loss, which are defined as when each of the pure tone thresholds at 1000, 2000, 3000, and 4000 hertz (Hz) are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. 38 C.F.R. § 4.86. As evidence to support his claim, the Veteran submitted an audiological evaluation dated October 2010. At that time his audiometric results were as follows: Hertz 1000 2000 3000 4000 Avg Right 25 25 40 45 34 Left 25 20 25 30 25 His speech recognition ability was 92 percent in the right ear and 88 percent in the left ear. Applying 38 C.F.R. § 4.85, Table VI, the Veteran’s right ear hearing loss is a Level I impairment and his left ear hearing loss is a Level II, which results in a non-compensable rating using Table VII. 38 C.F.R. § 4.85. The Veteran underwent a VA examination in December 2010, and the audiometric results were as follows: Hertz 1000 2000 3000 4000 Avg Right 15 10 30 30 21 Left 15 5 10 10 10 His speech recognition ability was 80 percent in the right ear and 92 percent in the left ear. The audiometry test results equate to Level III hearing impairment on the right and Level I impairment on the left, resulting a non-compensable rating. Id. As further evidence to support his claim, the Veteran submitted audiometric results from his private audiologist Dr. C. G. dated June 2011. At that time his audiometric results were as follows: Hertz 1000 2000 3000 4000 Avg Right 60 75 95 95 81.25 Left 55 75 100 90 80 His speech recognition ability was 96 percent on the right and 95 percent on the left. The audiometry test results equate to a Level III hearing impairment on the right and a Level II hearing impairment on the left, which results in a non-compensable evaluation. Id. In February 2016, the Veteran underwent another VA examination. At this time his audiometric results were as follows: Hertz 1000 2000 3000 4000 Avg Right 40 40 50 55 46 Left 35 35 40 45 39 His speech recognition ability was 80 percent on the right side and 76 percent on the left side. The audiometry test results equate to a Level III hearing impairment on the right and a Level III hearing impairment on the left, which warrants a non-compensable rating. Id. The Veteran’s audiological testing results from February 2018 are as follows: Hertz 1000 2000 3000 4000 Avg Right 95 100 110 120 106 Left 85 90 110 120 89 His speech recognition ability on the left side was 48 percent; however, his speech recognition ability on the right side was not available due to inconsistent results. The examiner determined that the use of speech discrimination scores was not appropriate for the Veteran because of language difficulties, and cognitive problems. Therefore, considering the reflection of exceptional patterns of hearing, this results in a Level XI hearing impairment on the right under Table VIA and a Level IX hearing impairment on the left under Table VI. A 70 percent rating under Table VII is thereby derived. The Veteran attempted to undergo a VA hearing examination in August 2018, but his results were too inconsistent to be reliable. Here, the Board finds the competent, clinical evidence does not include any audiological examination results demonstrating levels of bilateral hearing loss not compensated by the currently assigned ratings. The Board recognizes the Veteran’s statements regarding the impact of his hearing on his daily activities of living. However, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometric results are obtained. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100, with respect to determining the severity of his service-connected bilateral hearing loss. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2). Thus, the Board must base its determination on the audiological evaluation results of record and is bound by law to apply VA’s Rating Schedule based on such results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1; see also Lendenmann v. Principi, 3 Vet. App. 345 (1992). In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that 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. The Veteran has not otherwise described functional effects that are considered exceptional or that are not otherwise contemplated by the assigned evaluations. Id. Thus, his complete disability picture is compensated under the rating schedule. Further, neither he nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Id. (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In conclusion, the Board finds the ratings currently assigned for the Veteran’s bilateral hearing accurately reflect his disability picture, and higher ratings are not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Service Connection Entitlement to service connection for sinusitis The Veteran asserts he has a sinus disability that had its onset in service. After careful consideration of the evidence of record the Board finds service connection is warranted. By way of history, the Veteran first filed a claim for sinusitis in September 2009. The August 2011 rating decision denied service connection, and the Veteran perfected an appeal in September 2015. In May 2016, the Veteran submitted a statement that he wanted to re-open his claim. Although this claim was on appeal to the Board, the RO erroneous issued a rating decision in August 2016 declining to reopen the appeal. Therefore, the Board will review the appeal and determine if service connection is entitled for a sinus disability from the date of the Veteran’s initial claim received on September 29, 2010. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection on a direct basis requires evidence demonstrating: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the claimed in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). VA treatment records document a current disability of sinusitis during the pendency of the appeal. As such, the evidence establishes the first element of service connection. The remaining questions are whether there is evidence of an in-service occurrence of an injury or disease and competent evidence of a nexus between the current disability and the in-service disease or injury. The Veteran has stated that his sinus disability began in service and continued to worsen since leaving active service. A 1982 service treatment record reflects a diagnosis of a sinus disability during an inactive period of military service. While this is not enough to show a diagnosis during an active period of service, the Board finds it supports the Veteran’s contention that his sinus disability began during and has continued to worsen since service. Here, the Board finds the Veteran’s lay statements both competent and credible that his sinus disability began during active military service. The Veteran underwent VA examination in 2010 to determine the etiology of his sinus disability. The VA examiner opined that it would be speculative to state whether or not the Veteran’s current sinusitis is the same as the sinus disability that he had in service. Because the opinion is speculative, the Board finds it is not probative to the matter of service connection and affords the 2010 VA examiner’s opinion little probative value. In January 2018, the Veteran submitted a medical opinion from his private doctor, Dr. A. P. Dr. A. P. opined that, after reviewing the Veteran’s medical history, the Veteran’s current sinusitis developed on active duty and his symptoms had continued since that time, leading to the development of chronic sinusitis. Upon review, the Board finds the evidence is at least in equipoise as to whether the Veteran’s current sinusitis had its onset during service. Therefore, resolving all doubt in the Veteran’s favor, service connection for sinusitis is warranted. REASONS FOR REMAND Entitlement to a TDIU The Veteran asserts that his service-connected disabilities prevent him from obtaining and maintaining gainful employment. With the grant herein, he is service-connected for bilateral hearing loss, tinnitus, and sinusitis. Throughout the pendency of the appeal, the Veteran underwent multiple VA examinations that addressed the nature and severity of his service-connected disabilities and their resulting functional impairment. Upon review, the Board finds that, while each opinion addresses whether each of the Veteran’s service-connected disabilities alone renders him unemployable, they do not reflect an opinion addressing the functional impact the Veteran’s service-connected disabilities, in combination, had on his employability. As a result, the Board finds remand is warranted for additional development, to include obtaining an addendum opinion that describes the functional impact of the Veteran’s service-connected disabilities, in combination, on his ability to work, considering his education level, prior vocational training, work experience, and vocational history. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this Remand, to an appropriate VA medical professional to obtain an addendum opinion regarding the functional impact of the Veteran’s service-connected disabilities, in combination, on his employability. The need for another examination is at the discretion of the examiner. Following review of the record, forward the claims file to an appropriate clinician to describe the functional impact of the Veteran’s service-connected disabilities (bilateral hearing loss, tinnitus, and sinusitis) in combination, on his ability to work, considering his education level, prior vocational training, work experience, and vocational history. A rationale should be provided for any opinion offered. If the examiner is unable to provide an opinion without resorting to speculation, then the examiner shall explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner shall comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. (The AOJ shall ensure that any additional evidentiary development suggested by the examiner be undertaken with the goal so that a definite opinion can be obtained.) M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson