Citation Nr: 18152761 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 15-22 465 DATE: November 26, 2018 ORDER Entitlement to service connection for bilateral ear drum disability, claimed as busted ear drum, is denied. Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss for the period prior to April 16, 2016, is denied. Entitlement to an initial evaluation of 20 percent, but not greater, for bilateral hearing loss beginning April 16, 2016, is granted. REMANDED Entitlement to compensation under 38 U.S.C. 1151 for injured nerve, status post left knee surgery, is remanded. Entitlement to service connection for right knee disability, to include as secondary to injured nerve, status post left knee surgery, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of ear drum disability. 2. Prior to April 16, 2016, the Veteran’s bilateral hearing loss manifested Level III hearing acuity in the right ear and Level VI hearing acuity in the left ear. 3. Beginning April 16, 2016, the Veteran’s bilateral hearing loss manifests Level V hearing acuity in the right ear and Level VI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral ear drum disability are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 2. The criteria for an initial evaluation in excess of 10 percent for bilateral hearing loss for the period prior to April 16, 2016, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for an initial evaluation of 20 percent for bilateral hearing loss for the period beginning April 16, 2016, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1957 to November 1957. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2013 and April 2016 rating decisions. At the Veteran’s request, the Board scheduled an October 2018 videoconference hearing. The Veteran failed to attend his scheduled hearing or request a postponement. Therefore, his request for a Board hearing is considered withdrawn. See 38 C.F.R. § 20.704(d). 1. Entitlement to service connection for bilateral ear drum disability, claimed as busted ear drum The Veteran contends that service connection is warranted for a bilateral ear drum disability, claimed as busted ear drum. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current ear drum disability diagnosis and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The medical evidence does not support a finding of any ear drum disability. The Veteran’s extensive VA medical center (VAMC) records do not document any ear drum disability. The only medical record that addressed the ear drums (tympanic membranes) was a June 2003 VAMC record, which noted “Middle ear measures revealed mobile tympanic membranes with present ipsilateral acoustic reflexes, indicative of normal middle ear function.” Other VAMC records document hearing loss, tinnitus, and possible fungal infection of the left ear (in June 2015), but not an ear drum disability. To the extent the Veteran believes that hearing loss and tinnitus are residuals of his reported ear drum disability, these conditions are already service connected. While the Veteran believes he has a current ear drum diagnosis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education regarding the status and functioning of the inner ear. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which indicates hearing loss and tinnitus but not any diagnosis dealing with the ear drums. Accordingly, because the medical records do not contain any indication of an ear drum disability and the Veteran is not competent to diagnose an ear drum disability, the Board finds there is no current disability and service connection is not warranted. 2. Entitlement to an initial evaluation in excess of 10 percent for bilateral hearing loss A February 2013 rating decision granted service connected for bilateral hearing loss. The rating decision assigned a 10 percent rating, effective June 12, 2012. The Veteran asserts that a higher rating is warranted. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Rating Schedule, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. To evaluate the degree of disability for service-connected bilateral hearing loss, the Rating Schedule establishes eleven auditory acuity levels, designated from Level I through Level XI, for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Rating Schedule also provides for rating exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. If the puretone threshold is greater than 55 decibels at each of four specified frequencies (1000 Hertz, 2000 Hertz, 3000 Hertz, and 4000 Hertz), VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral, with each ear evaluated separately. 38 C.F.R. § 4.86(a). If the puretone threshold is 30 decibels or less at 1000 Hertz and simultaneously 70 decibels or more at 2000 Hertz, VA must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next highest numeral for consideration, with each ear evaluated separately. 38 C.F.R. § 4.86(b). As an initial matter, the Board notes that there are hearing assessment results dated December 2015 associated with the record. This assessment does not indicate that the Maryland CNC speech discrimination test was used, however, as required by 38 C.F.R. § 4.85. Thus, only the two VA examinations will be considered, dated January 2013 and April 2016. In the first VA examination of record, dated January 2013, the audiogram indicated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 60 70 90 LEFT 20 25 70 80 85 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 60 decibels in the right ear and 65 decibels in the left ear. Speech recognition ability was 84 percent in the right ear and 80 percent in the left ear. Using Table VI, the VA audiological examination demonstrates that the Veteran’s hearing impairment was manifested by Level III hearing acuity in the right ear and Level IV hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VI. Under Table VII, combining Level III and Level IV designations results in a 10 percent evaluation for bilateral hearing loss. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The left ear hearing loss shown in this audiological examination qualifies as an exceptional pattern of hearing impairment, however. See 38 C.F.R. § 4.86. Thus, the designation under Table VIA must be considered as well, and the higher numeral of the two must be elevated to the next higher Roman numeral; this yields a Level VI designation for the left ear. Under Table VII, combining Level VI and Level III designations results in a 10 percent evaluation. Accordingly, a 10 percent evaluation is warranted based on the results of the January 2013 VA examination. In the second VA examination, dated April 2016, the audiogram indicated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 75 80 95 LEFT 25 40 75 80 85 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 74 decibels in the right ear and 70 decibels in the left ear. Speech recognition ability was 76 percent in the right ear and 72 percent in the left ear. Using Table VI, the VA audiological examination demonstrates that the Veteran’s hearing impairment was manifested by Level V hearing acuity in the right ear and Level VI hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VI. Under Table VII, combining Level V and Level VI designations results in a 20 percent evaluation for bilateral hearing loss. See 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. Neither ear qualifies as an exceptional pattern of hearing impairment. See 38 C.F.R. § 4.86. Accordingly, a 20 percent evaluation is warranted based on the results of the April 2016 VA examination. Finally, entitlement to a total disability based on individual unemployability (TDIU) is an additional element of all claims for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). At the VA examinations, the Veteran reported the effect of his hearing loss as “I miss out on a lot by not being able to hear what is said. When I’m talking on the phone it’s ridiculous. I say yes when I should say no sometimes.” The Veteran has not claimed that his hearing loss renders him unable to secure or follow a substantially gainful occupation, and the record does not support such a finding. The Veteran could maintain employment in an area that did not require communication by telephone and utilized alternative modes of communication. Thus, the Board finds that remand for a TDIU is not warranted. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for injured nerve, status post left knee surgery, is remanded. The Board cannot make a fully informed decision on the issue of for entitlement to compensation under 38 U.S.C. § 1151 for injured nerve, status post left knee surgery, because no VA examiner has opined whether the Veteran has incurred any additional disability as a result of his September 2009 left knee surgery. 2. Entitlement to service connection for right knee disability, to include as secondary to injured nerve, status post left knee surgery, is remanded. Because the outcome of the claim for entitlement to compensation under 38 U.S.C. § 1151 for injured nerve, status post left knee surgery, could affect the determination of entitlement to service connection for right knee disability, the Board finds the two are intertwined and the right knee claim is remanded in conjunction with the remand for entitlement to compensation under 38 U.S.C. § 1151. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination and medical opinion in this case. The examiner must review the entire claims file as part of the examination. After examining the Veteran and reviewing the complete claims file, the examiner should answer the following questions: (a.) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran incurred any additional disability due to VA surgery on the left knee in September 2009? The examiner should specifically address whether the Veteran experiences left thigh symptoms such as numbness and pain. (b.) If the Veteran incurred an additional disability due to his VA treatment and surgery, the examiner should determine whether the proximate cause of the additional disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical   treatment, or examination; or (2) an event not reasonably foreseeable. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Ripplinger, Associate Counsel