Citation Nr: 1807701	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-16 921		DATE
		

THE ISSUES

1.   Entitlement to service connection for right ear hearing loss.

2.  Entitlement to service connection for vertigo, to include as secondary to service-connected left ear hearing loss.

3.  Entitlement to a compensable disability rating for left ear hearing loss.

4.  Entitlement to a 10 percent disability rating based on multiple noncompensable service-connected disabilities.


ORDER

Service connection for right ear hearing loss is denied.

Service connection for vertigo is denied.

A compensable disability rating for left ear hearing loss is denied.

A 10 percent disability rating for multiple noncompensable disabilities in denied.



FINDINGS OF FACT

1.  The Veteran does not have hearing loss in the right ear for VA compensation purposes.

2.  The Veteran's vertigo did not manifest in service, is not related to service, did not manifest within one year of service discharge, and is not caused by or aggravated by his service-connected left ear hearing loss.

3.  The Veteran has demonstrated hearing acuity of Level I in the left ear, and hearing acuity of Level I is imputed for his nonservice-connected right ear.

4.  The Veteran's multiple noncompensable service-connected disabilities did not clearly interfere with normal employability.


CONCLUSIONS OF LAW

1.  The criteria for service connection for right ear hearing loss have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.385 (2017).

2.  The criteria for service connection for vertigo have not been met.  38 U.S.C. 
§§ 1101, 1110, 1112, 1113, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a), 3.310 (2017).
 
3.  The criteria for a compensable evaluation for left ear hearing loss have not been met.  38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100 (2017).

4.  The criteria for a 10 percent disability rating for multiple noncompensable service-connected disabilities have not been met.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.324 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Introduction

The Veteran served on active duty from June 1971 to June 1974.

These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2011 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico (RO).

In October 2016, the Board remanded this matter for further development, and the case has been returned for appellate consideration.

This appeal was processed using the Virtual VA (VVA) and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future review of this Veteran's case should take into consideration the existence of these electronic records.

Veterans Claims Assistance Act of 2000

The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled.  Through the use of boilerplate language in the May 2014 and March 2015 VA Form 9s, the Veteran's representative raises the issue of VA's duties to notify and assist.

Prior to initial adjudication, letters dated in March 2011 and December 2011 satisfied the duty to notify provisions with regard to the Veteran's service connection claims.  With regard to his increased rating claims, the claims arise following the grant of service connection.  Once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

With regard to the duty to assist, the Veteran's service treatment records and VA medical treatment records were associated with the claims file.

With regard to his service connection claims, the Veteran was afforded VA examinations for ear conditions in December 2011, March 2014, with an addendum opinion obtained in January 2017, and for hearing loss in March 2014 and February 2017.  These examinations were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, and a complete review of the claims file.  The examiners also provided rationales for their opinions.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).

With regard to his increased rating claim for left ear hearing loss, the Veteran was afforded audiological examinations in March 2014 and February 2017.  For the reasons stated above, these examinations were adequate.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U.S. 396, 129 S. Ct. 1696 (2009).  Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence.

Lastly, as relevant to the issues being decided, the Board remanded this case in October 2016 so the Veteran could be afforded a new audiological examination and to obtain an addendum opinion on the issue of service connection for vertigo.  The Board finds there has been substantial compliance with its October 2016 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand).

Finding that the provisions of the VCAA have been fulfilled, the Board will now turn its attention to the Veteran's claims for service connection for certain disabilities and increased ratings of certain disabilities.

Service Connection

In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service.  38 U.S.C. § 1110 (2012); 38 C.F.R.
§ 3.303 (2017).  To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).

Also, a disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progression by a service-connected disease or injury.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310(a), (b) (2017).  To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).

For certain enumerated chronic diseases, such as other organic diseases of the nervous system, which include sensorineural hearing loss and vertigo, service connection may be granted based upon a presumption of incurrence in or aggravation by service despite the lack of evidence of such disease during service if diagnosed and manifested to a compensable degree within a prescribed period, generally one year, after separation from qualifying service.  38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2017); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013) (constraining 
§ 3.303(b) to those chronic diseases listed in § 3.309(a)); Fountain v. McDonald, 27 Vet. App. 258 (2015) (adding tinnitus as an organic disease of the nervous system under 38 C.F.R. § 3.309(a)).

Additionally, for those same enumerated chronic diseases service connection may be granted despite the lack of evidence of such disease during service if there is a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  38 C.F.R. § 3.303(b) (2017); see 38 C.F.R. § 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  38 C.F.R. § 3.307(b) (2017).

For VA purposes, there are three ways in which an audiological examination can show that hearing loss is disabling:  1) "when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater"; or 2) "when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater"; or 3) "when speech recognition scores using the Maryland CNC Test are less than 94 percent."  38 C.F.R. § 3.385 (2017).  "Audiometric testing measures threshold hearing levels (in decibels (dB)) over a range of frequencies (in Hertz (Hz)); the threshold for normal hearing is from 0 to 20 dB, and higher threshold levels indicate some degree of hearing loss."  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Absence of a hearing loss disability during service is not always fatal to a service connection claim.  Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service.  Hensley v. Brown, 5 Vet. App. 155, 158-60 (1993) (setting out the requirements for establishing service connection for hearing loss).

In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

Here, the Board reviewed all evidence in the claims file, with an emphasis on that which is relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims.

Right Ear Hearing Loss

The Veteran contends that his duties as an aviation mechanic during military service caused his right ear hearing loss and, therefore, he seeks service connection.

The Veteran, as a lay person, is competent to note what he experiences, including decreased hearing acuity.  See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994).  It is similar to a separated shoulder, varicose veins, or flat feet, which are capable of direct lay observation.  See, e.g., Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  In this case, however, the question of whether the specific degree of the Veteran's hearing loss meets the criteria for hearing loss for VA compensation purposes is a complex medical question unlike testimony as to the Veteran experiencing the symptoms of decreased hearing generally.  Therefore, appropriate expertise is required to determine whether the Veteran's hearing acuity is impaired to the level of a hearing loss disability under VA regulations.  In the present case, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render audiological findings.  See 38 C.F.R. 
§ 3.159(a)(1) (2017).  While the Veteran is competent to report what he experiences, he is not competent to ascertain his level of hearing loss, which is not readily subject to lay observation.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

With respect to the first Holton element, current disability, in March 2014 the Veteran was afforded a VA audiological examination, during which he was diagnosed as having sensorineural hearing loss in the frequency range of 500 to 4000 Hz in the right ear.  The Veteran's speech discrimination score in the right ear was 100 percent, and the following puretone thresholds were obtained:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
10
25
25

Pursuant to the Board's October 2016 remand, in February 2017 the Veteran was afforded another VA audiological examination, during which he was diagnosed as having sensorineural hearing loss in the frequency range of 500 to 4000 Hz in the right ear.  The Veteran's speech discrimination score in the right ear was 100 percent, and the following puretone thresholds were obtained:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
10
20
30

The Board finds that the evidence of record as to the Veteran's right ear hearing acuity shows that the Veteran does not currently have hearing loss for VA compensation purposes in his right ear.  In neither the March 2014 nor the February 2017 VA examination reports is it shown that the Veteran has auditory thresholds of 40 decibels or greater; or 26 decibels or greater for at least three of the specified frequencies.  See 38 C.F.R. § 3.385 (2017).  During both examinations the Veteran's speech discrimination score in the right ear was above 94 percent.

Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability.  "In the absence of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, the first Holton element is not met, and the claim fails.

Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied.  See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

Vertigo

The Veteran contends that his vertigo is caused by his service-connected left ear hearing loss disability and, as such, it should be service connected.

With respect to the first Wallin element, current disability, in December 2011 the Veteran was afforded a VA examination for ear conditions.  At that time he was diagnosed as having vertigo.  The Veteran reported that the problem had started several years before but had gotten worse for the last two to three years.  The Veteran reported that he had fallen while getting out of bed and that he had lost his balance bending down to put on his pants or shoes.  The examiner indicated that the Veteran did not have symptoms attributable to Meniere's syndrome.  The examiner indicated that the episodes occurred more than once weekly and lasted less than an hour.  The examiner noted that the external ear canals were dry and scaly with serous discharge, and the Veteran's hearing loss was noted.  The examiner indicated that the Veteran's gait and limb coordination test were normal.  The examiner indicated that the Romberg test was abnormal or positive for unsteadiness and that vertigo was elicited during the Dix Hallpike test.

With respect to the second Wallin element, service-connected disability, the Veteran is service-connected for left ear hearing loss.  Therefore, the first and second Wallin elements are met.

Regarding the crucial third Wallin element, medical evidence of a nexus between the service-connected disease or injury and the current disability, the Board notes that the question presented in this case, i.e., the relationship, if any, between the Veteran's current vertigo and his service-connected left ear hearing loss, is essentially medical in nature.  The Board is prohibited from exercising its own independent judgment to resolve medical questions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).

Based upon the December 2011 VA examination for ear conditions, the examiner opined that it was less likely than not that the Veteran's vertigo was proximately due to or the result of his service-connected left ear hearing loss.  The examiner explained that the hearing loss had been present since 1974 but the vertigo had started a few years ago.

The Veteran's VA medical records show in primary care follow up notes that in February 2011 the Veteran complained of hearing loss and dizziness.  His medical records show that in July 2012, he was seen by the VA ENT Head/Neck clinic.  It was recorded that a July 2012 brain MRI was positive for lacunar infarcts and sinusitis.  The recorded impressions were 1) imbalance secondary to lacunar infarcts, 2) sinusitis, and 3) sensorineural hearing loss.  The stated plan was to treat the sinusitis, get a neurological evaluation, and reconsult with audiology on hearing aids.

The Veteran's medical records show that in November 2012 he returned for the four-month follow-up with the VA END Head/Neck clinic.  It was noted that the Veteran reported persistent dizziness and imbalance on a daily frequency that was associated with activity; the sensation as if fainting.  The Veteran reported that he had been suffering from these symptoms for the last twenty years.  It was noted that the July 2012 brain MRI showed lacunar infarcts in the bilateral cerebellar hemispheres and central pons and that these were incidental findings as the Veteran was not presenting with cerebellar or brainstem symptoms.  The physician opined that the Veteran's dizziness was probably multifactorial: ear pathology and diabetic neuropathy.  The recorded impression was imbalance secondary to lacunar infarcts.

In March 2014, the Veteran was afforded a VA examination for ear conditions.  The Veteran reported having vertigo for ten to fifteen years, frequently daily and lasting seconds.  He described it as whirling and reported that it occurred with positional changes.  He was not taking medication for it.

The examiner noted that the Veteran suffered from tinnitus, occurring more than once weekly and lasting more than twenty-four hours, and from vertigo, occurring more than once weekly and lasting less than an hour.  The examiner recorded that the Veteran's gait and limb coordination test were normal.  It was recorded that the Romberg test was abnormal or positive for unsteadiness; the Dix Hallpike test was normal, no vertigo or nystagmus during test.

The examiner noted that the July 2012 brain MRI showed lacunar infarcts bilateral/sinusitis.  The examiner noted that the Veteran had bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hz.  The examiner observed that the Veteran had to use a support to hold or to lean on the wall to walk.

The examiner opined that the Veteran's vertigo was less likely than not proximately due to or the result of the Veteran's service-connected left ear hearing loss.  It was explained that the vertigo occurred after the hearing loss.  Additionally, the July 2012 MRI of the brain revealed bilateral lacunar infarcts of the cerebellar hemispheres, and the vestibulonystagomogram was consistent with vertigo of central origin.  The examiner concluded that all evidence supported vertigo of central nervous system etiology and not being related to the Veteran's left ear hearing loss.

In January 2017, an addendum opinion to the March 2014 VA examination report was provided.  The examiner opined that it was less likely than not that the Veteran's vertigo was proximately due to or the result of the Veteran's service-connected left ear hearing loss.  The examiner explained that the Veteran's vertigo was the result of cerebral infarcts as revealed on the July 2012 brain MRI report, which stated the images were positive for bilateral lacunar infarcts of the cerebellar hemispheres.  The examiner explained that if the vertigo was related to the hearing loss, the onset of the two conditions would have been simultaneous and not sequential.  The examiner opined that the vestibulonystagomogram was supportive of non-aggravation because the result was consistent with vertigo of central origin (secondary lacunar infarcts and not from hearing loss).  The examiner concluded that there was no evidence to support aggravation of the vertigo by the service-connected left ear hearing loss; therefore, it was less likely than not that any vertigo disability was aggravated by the service-connected left ear hearing loss disability.

The Board considers the consistent medical nexus opinions in the December 2011, March 2014, and January 2017 VA examination reports to be probative because they are definitive, based upon an examination of the Veteran and a complete review of the claims file, and the examiner provided a detailed rationale for the conclusions reached that is supported by the medical record.  Accordingly, the opinions are found to carry significant weight.  Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 447-48 (2000).

The Board notes that in the November 2012 ENT clinic notes it was considered that the Veteran's vertigo was "probably multifactorial" and that ear pathology and diabetic neuropathy were two of the conditions considered.  The Board finds that, in the context of the Veteran's treatment as reflected by the July and November 2012 ENT clinic notes, this line of thinking appears to have been a holistic approach to the Veteran's medical needs rather than a well-thought-out nexus opinion.  Indeed, the recorded primary impression concerning the Veteran's vertigo in both July and November 2012 was imbalance secondary to lacunar infarcts.  This impression is consistent with the opinions expressed in the VA examination reports.  Accordingly, the Board finds that the third Wallin element, medical nexus, is not met, and service connection for vertigo secondary to service-connected left ear hearing loss fails on this basis.

The Board has considered the Veteran's lay statements regarding his symptoms.  While the Board is sympathetic to the Veteran's disability, the probative evidence of record outweighs these lay statements.  The Veteran, as a lay person, is competent to describe physical symptoms and to report that he has received a medical diagnosis.  However, he is not competent to diagnose his symptoms or attribute them to military service or service-connected disabilities.  Whether the Veteran currently has vertigo and whether the disorder relates to service is a medically complex determination that cannot be based on lay observation alone.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).  Instead, the determination must be made by a medical professional with appropriate expertise.  Id.  Thus, in so far as the Veteran's statements indicate that his current vertigo relates to his service or a service-connected disability, they are outweighed by the VA examiners' findings that the Veteran's vertigo was not etiologically related to his active service or to his service-connected left ear hearing loss.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).

Although the Veteran has claimed service connection for vertigo on a secondary basis to his service-connected left ear hearing loss, to afford the Veteran all possible benefits, the Board will also consider his claim on direct and presumptive bases.  As done previously, the Board must fully consider the lay assertions of record.  In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology.  See 38 C.F.R. § 3.159(a)(2) (2017); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge).

As noted above, the Veteran has a current diagnosis of vertigo, and therefore, the first Holton element is accordingly met.

With respect to the second Holton element, in-service incurrence or aggravation of a disease or injury, a review of the Veteran's service treatment records is negative for any symptoms, complaints, diagnosis, or treatment for vertigo or dizziness.  In fact, during the December 2011 VA examination, the Veteran reported that the vertigo started several years before, not that it started while he was in service.  When he was seen in November 2012 by the ENT Head/Neck clinic, the Veteran reported that he had been suffering from vertigo symptoms for the last twenty years.  During the March 2014 VA examination, the Veteran reported that the vertigo started ten to fifteen years before, not that it started while he was in service.  Giving the timeframes the most generous calculation, the evidence of record is that the Veteran's vertigo began approximately twenty years after he left service.  Accordingly, the second Holton element is not met, and direct service connection fails on this basis.

The Board notes that vertigo is an organic disease of the nervous system, and as such, is considered to be a chronic disease for which presumptive service connection could potentially be warranted under 38 C.F.R. § 3.307(a)(3) (2017).  The competent evidence of record, however, does not show that the Veteran's vertigo manifested to a compensable degree within one year after discharge from service.  Indeed, the Veteran stated in November 2012 that it started twenty years before, which was almost twenty years after discharge from service.  Accordingly, service connection for vertigo on a presumptive basis under 38 C.F.R. § 3.307(a)(3) (2017) is not warranted.

The Board also notes that since vertigo is a chronic condition recognized under 38 C.F.R. § 3.309(a) (2017), service connection based upon continuity of symptomatology can potentially be warranted under 38 C.F.R. § 3.303(b) (2017).  See also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  The evidence of record does not show that the Veteran has continuously had vertigo since discharge from service, as his statement in November 2012 places the onset of symptoms twenty years after discharge from service.  Accordingly, service connection for vertigo based on a theory of continuity of symptomatology of a chronic disease is not warranted.

Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied.  See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

Increased Ratings

Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017).  Disability evaluations are determined by assessing 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 ratings schedule.  Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity.  See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2 (2017).  If there is a question as to which evaluation should be applied to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).

The primary focus in a claim for increased rating is the present level of disability.  Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal.  Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

Left Ear Hearing Loss

The Veteran essentially contends that his service-connected left ear hearing loss is more disabling than contemplated by the current noncompensable evaluation.  As stated above, the Veteran is competent to report his experience of decreased hearing acuity.  See Layno v. Brown, 6 Vet. App. 465, 467-69 (1994).  He is not, however, competent to state whether his symptoms warrant a specific rating under the schedule for rating disabilities.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Veteran's left ear hearing loss is currently assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100 (2017).  VA disability compensation for impaired hearing is derived from the application in sequence of two tables.  See 38 C.F.R. § 4.85(h), Table VI, Table VII (2017).  Table VI correlates the average puretone threshold (derived from the sum of the 1000, 2000, 3000, and 4000-Hertz thresholds divided by four) with the ability to discriminate speech, providing a Roman numeral to represent the correlation.  The table is applied separately for each ear to derive the values used in Table VII.  Table VII is used to determine the disability rating based on the relationship between the values for each ear derived from Table VI.  See 38 C.F.R. § 4.85 (2017).  The assignment of a rating for hearing loss is achieved by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

In considering the evidence of record under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to a compensable evaluation for left ear hearing loss.  In this case, the rule for unilateral hearing loss applies, see 38 C.F.R. § 4.85(f) (2017), but, as explained below, the rule for exceptional patterns of hearing impairment does not apply, see 38 C.F.R. § 4.86 (2017).

The relevant evidence includes the February 2017 VA audiological report, which, for the left ear, noted a speech discrimination score of 96 percent, average puretone threshold of 36 decibels, and the following individual puretone thresholds:




HERTZ



1000
2000
3000
4000
Avg.
LEFT
20
15
30
80
36

For the Veteran's left ear, by intersecting the average puretone decibel loss falling between 0 and 41 with the percent speech discrimination from 92 to 100, the resulting numeric designation from Table VI is I.  Pursuant to 38 C.F.R. § 4.85(f) (2017), the Veteran's non-service-connected right ear is assigned a Roman numeral designation for hearing impairment of I.  As discussed above, the Veteran's right ear loss of hearing acuity is not service-connected because he does not have hearing loss for VA purposes and, accordingly, the provisions of 38 C.F.R. § 3.383 (2017) do not apply.  See 38 C.F.R. § 4.85 (f) (2017).

Table VII must then be consulted for assignment of a percentage evaluation and assignment of a diagnostic code.  With a numeric designation of I for the right ear on the axis for the better ear and a numeric designation of I for the left ear on the axis for the poorer ear, the point of intersection on Table VII requires assignment of a noncompensable percent rating under Diagnostic Code 6100.  See 38 C.F.R. 
§ 4.85(h) (2017).

The Board has also considered the provisions of 38 C.F.R. § 4.86 (2017) governing exceptional patterns of hearing impairment.  The VA examination report, however, fails to demonstrate that the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, or that the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz.  Therefore, the provisions of 38 C.F.R. § 4.86 do not apply.  See 38 C.F.R. § 4.86(a), (b) (2017).

In response to the Veteran's representative's use of boilerplate language in the May 2014 and March 2015 VA Form 9s raising the issues of entitlement to all theories reasonably raised by the evidence of record, the Board will expressly address the issues of extraschedular rating and total disability rating based on individual unemployability (TDIU).

The Board also considered whether an extraschedular rating is warranted for the service-connected left ear hearing loss during the relevant period on appeal.  Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2017).

The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate.  See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted").  Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 116.  Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet. App. at 116.  In other words, the first element of Thun compares a veteran's symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate.  Yancy, 27 Vet. App. at 494-95.

With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate.  The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and puretone testing.  Here, all the Veteran's hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria.  As the Veteran reported during VA examinations, the Veteran's hearing loss disability has manifested in difficulty following group conversations, listening to the television, and difficulty understanding conversations with competing background noise, which causes difficulties functioning in social environments.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing.  The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds.  The ability of the Veteran to understand people and having to ask others to repeat themselves on a regular basis is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations.  The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing.  See Doucette, 28 Vet. App. 366 (holding "that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech").

The decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability.  The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999.  See 64 Fed. Reg. 25,202 (May 11, 1999).  In forming these revisions, VA sought the assistance of the Veteran's Health Administration (VHA) in developing criteria that contemplated situations in which a veteran's hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids.  VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment.  The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA.  The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting.  59 Fed. Reg. 17,295 (Apr. 12, 1994).

The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran's difficulties functioning in a social environment due to hearing loss.  Accordingly, the Board finds that the Veteran's reported hearing-related difficulties are factors contemplated in the regulations and schedular rating criteria.  See also Doucette, 28 Vet. App. 366 (holding 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 precisely the effects that VA's audiometric tests are designed to measure . . . an inability to hear or understand speech or to hear other sounds in various contexts . . . are contemplated by the schedular rating criteria").

According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extraschedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations."  Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities.  In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate.

Comparing the Veteran's disability level and symptomatology of left ear hearing loss to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate.  There are no additional expressly or reasonably raised issues presented on the record.  Absent any exceptional factors associated with hearing loss, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), it was held that a claim for a TDIU is part of an increased rating claim when such is raised by the record.  There is no evidence of record suggesting that the Veteran's service-connected left ear hearing loss has rendered him unable to secure or follow a substantially gainful occupation.  As noted above, the Veteran has stated that he has difficulty following conversations in a noisy environment and listening to television; he has not stated that his service-connected left ear hearing alone or in combination with his other service-connected disabilities has impacted his employability.  Indeed, during the December 2011 VA examination for ear conditions, the Veteran stated that he retired due to the symptoms of vertigo.  As discussed above, service connection for vertigo is not warranted here.  Accordingly, a TDIU claim has not been raised and no action pursuant to Rice is warranted.

Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied.  See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).

10 Percent for Multiple Noncompensable Service-connected Disabilities

Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating.  38 C.F.R. 
§ 3.324 (2017).

Effective March 27, 2001, the Veteran has been service connected for left ear hearing loss, evaluated as noncompensable.

In a January 9, 2012, rating decision, the RO granted service connection for residuals laceration to third digit claimed as right hand all fingers in the right hand, evaluated as noncompensable effective October 7, 2011.  In that same rating decision, the RO denied entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities finding that the evidence of record failed to establish any significant occupational impairment from the Veteran's service-connected disabilities.

In a January 20, 2012, rating decision, the RO granted service connection for tinnitus, evaluated as 10 percent disabling effective August 19, 2011.

With hindsight, the Board finds that prior to August 19, 2011, the Veteran was service connected for only left ear hearing loss, and therefore, he was not entitled to compensation under 38 C.F.R. § 3.324.  After August 19, 2011, the Veteran was service connected for left ear hearing loss and for tinnitus, which was evaluated as 10 percent disabling.  Because compensation provided for under 38 C.F.R. § 3.324 cannot be combined with any other rating, the Veteran was not entitled to a 10 percent rating for multiple noncompensable service-connected disabilities.  Under this approach, the disposition of this claim is based on the law, not the facts of the case, and the claim must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

Looking at the case sequentially, the Board recognizes that prior to the January 20, 2012, rating decision, the Veteran was service-connected for two noncompensable disabilities-left ear hearing loss and residuals of right hand lacerations-from October 7, 2011, to January 20, 2012, which potentially could have entitled him to compensation under 38 C.F.R. § 3.324.  The Veteran, however, did not submit any lay evidence to support a finding that these disabilities interfered with his ability to work.  Indeed, during the December 2011 VA examination for ear conditions, the Veteran reported that, for safety reasons, he had retired from driving a truck and handling merchandise because of his frequent episodes of vertigo.
  
Likewise, the medical evidence does not demonstrate that the Veteran's noncompensable service-connected disabilities interfered with his ability to work.  On his April 1971 enlistment examination report and on the report of the January 2012 VA examination for hand and finger conditions, it was recorded that the Veteran is left hand dominate.  On the January 2012 VA examination report, the examiner recorded that the Veteran experienced tenderness of the right third finger but that there was no loss of function and that it did not impact his ability to work.

The Board finds that the competent, credible, and probative evidence of record demonstrates that from October 7, 2011, to January 20, 2012, the Veteran's two noncompensable service-connected disabilities did not clearly interfere with normal employability.  Accordingly, entitlement to a 10 percent rating for multiple noncompensable service-connected disabilities for this period is not warranted.

Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied.  See 38 U.S.C. §§ 501, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).



______________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals

ATTORNEY FOR THE BOARD	Leanne M. Innet, Associate Counsel

Copy mailed to:  Puerto Rico Public Advocate for Veterans Affairs





Department of Veterans Affairs