Citation Nr: 18154864 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 18-44 215 DATE: November 30, 2018 ORDER Service connection for tinnitus is denied. A 30 percent rating, but no higher, for bilateral hearing loss is granted. REMANDED Service connection for an ENT disability, to include throat cancer, is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran does not currently have diagnosed tinnitus that was incurred in and due to his time in service. 2. The Veteran’s hearing loss is manifested by no worse than Level VI hearing impairment in his left ear and Level VII hearing impairment in his right ear. CONCLUSIONS OF LAW 1. The criteria for service connection tinnitus have not been met. 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303. 2. The criteria for a 30 percent rating, but no higher, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.385, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1950 to August 1952 and from August 1953 to April 1954. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran contends he has tinnitus that was incurred in and due to his time in service. In a June 2016 examination for his hearing loss and tinnitus, the Veteran denied having tinnitus. In a June 2017 examination, the Veteran reported tinnitus and continued problems hearing speech in conversation. However, extensive medical records prior to this point show the Veteran did not report tinnitus or answered negatively to whether he experienced tinnitus. (See May 2004, September 2004, April 2006, June 2007, April 2008, March 2009, June 2010, February 2011, December 2013, April 2014, October 2015, January, May, September 2016 medical records.) Additionally, the Veteran’s service treatment records (STRs) are negative for any mention of any in-service tinnitus. Lastly, the Veteran’s objective record is negative for any mention of a link between any presently existing tinnitus and any tinnitus the Veteran may have experienced in service. The Board acknowledges tinnitus may be confirmed by lay testimony alone. The Board also acknowledges the Veteran contends he currently has tinnitus that was caused by his time in service. However, the Board finds the Veteran’s reports of experiencing current tinnitus to be far outweighed by the numerous times over the years between his service when he denied suffering from tinnitus. Therefore, based on the above, the claim will be denied. Increased Rating Disability evaluations (ratings) are determined 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson, 12 Vet. App. 119 (1999). Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. The Court has held that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Simply stated, this means that while the Veteran may have hearing problems (this fact is not in dispute), whether he has hearing loss warranting compensation is based on certain objective criteria. The only question is the degree of disability. The Veteran contends his hearing loss is more severe than his currently assigned noncompensable rating. The Veteran was afforded a hearing examination in June 2016. The puretone thresholds, in decibels, were as follows: Hertz 1000 2000 3000 4000 RIGHT 30 35 65 65 LEFT 30 50 60 65 The average puretone threshold decibel loss was 49 dB in the right ear and 51 dB in the left ear. Speech audiometry revealed speech recognition ability of 96 percent bilaterally. The results in this evaluation reveal the Veteran’s hearing loss was manifested by no more than Level I hearing acuity in the right ear and Level I hearing acuity in the left ear. Such designations equate to a noncompensable evaluation. The Veteran had another hearing examination in June 2017. The puretone thresholds, in decibels, were as follows: Hertz 1000 2000 3000 4000 RIGHT 65 80 85 85 LEFT 55 75 85 80 The average puretone threshold decibel loss was 79 dB in the right ear and 74 dB in the left ear. No speech recognition tests using the Maryland CNC word list was reported at this examination. The results in this evaluation reveal the Veteran’s hearing loss was manifested by no more than Level VII hearing acuity in the right ear and Level VI hearing acuity in the left ear. Such designations equate to a 30 percent evaluation. This evaluation takes into account the Veteran’s exceptional patterns of hearing impairment according to 38 C.F.R. § 4.86. The remainder of the Veteran’s record is negative for any audiological testing that would warrant a higher disability rating. The medical and lay evidence outlined above clearly reflects the Veteran has communication difficulties and problems hearing. To the extent the Veteran contends his bilateral hearing loss is more severe than reflected by his current disability rating, the Board notes the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person, such as difficulty understanding conversation and straining to hear. See Layno v. Brown, 6 Vet. App. 465 at 469. However, while the Veteran is competent to report his symptoms of a disability, he is not competent to opine on matters requiring medical knowledge, such as the severity of his hearing condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board attaches more probative weight to the medical records and clinical findings from the medical professionals who conducted the audiological testing rather than to the statements. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, shows a 30 percent rating, but no higher, is warranted. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). REASONS FOR REMAND The Veteran contends his ENT disability, to include throat cancer, was incurred in and due to his time in service. The Veteran has been diagnosed and treated for cancer in his throat. The Veteran’s STRs, including his exit examination, are negative for symptoms or treatment of such cancer in service. However, in multiple VA medical records, the examiners have noted the Veteran received care for his cancer from private doctors. Those records are not associated with the Veteran’s file and the Board finds in order to have a complete record of the Veteran’s disability picture, those records must be obtained. The matter of entitlement to a TDIU is intertwined with the outcome of the Veteran’s claim for service connection for his ENT disability and will therefore also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding VA and private medical records and associate them with the claims file. In particular, the AOJ should be sure to make all reasonable attempts to obtain private medical treatment records regarding the Veteran’s treatment of his ENT disability and throat cancer. All attempts and responses should be documented and associated with the Veteran’s file. (Continued on the next page)   If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal, including the Veteran’s claim for a TDIU. If the determinations remain adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel