Citation Nr: 20028878 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 16-56 243 DATE: April 24, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for left ear hearing loss is reopened. Entitlement to service connection for left ear hearing loss is denied. Entitlement to a disability rating in excess of 30 percent for a respiratory disability (variously diagnosed as reactive airway disease and asthma), prior to April 18, 2019 is denied. A 60 percent disability rating, but no higher, for a respiratory disability (variously diagnosed as reactive airway disease and asthma) is granted, effective April 18, 2019. REMANDED Entitlement to a rating in excess of 0 percent for right ear hearing loss is remanded. FINDINGS OF FACT 1. A December 2005 rating decision denied the Veteran’s claim of entitlement to service connection for left ear hearing loss. The Veteran did not appeal this decision, nor did he submit new and material evidence within one year of the denial. 2. Evidence received since the December 2005 rating decision, by itself, or in conjunction with previously considered evidence, relates to unestablished facts necessary to substantiate the underlying claim of entitlement to service connection for left ear hearing loss. 3. The preponderance of the evidence of record is against finding that the Veteran has had left ear hearing loss at any time during or approximate to the pendency of the claim. 4. Prior to April 18, 2019, the competent, credible evidence of record does not reflect that a one-time evaluation of FEV-1 44.4 percent predicted accurately reflected the severity of the Veteran’s disability at that time, nor does it reflect an FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 5. From April 18, 2019, the competent, credible evidence of record reflects FEV-1 of 55 percent predicted. CONCLUSIONS OF LAW 1. The December 2005 rating decision that denied entitlement to service connection for left ear hearing loss is final. 38 U.S.C. §§ 5103A, 5108, 7105; 38 C.F.R. §§ 3.104, 3.156. 2. The evidence received since the December 2005 rating decision is new and material as to the claim of entitlement to service connection for left ear hearing loss, and the claim is reopened. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. 4. The criteria for a rating in excess of 30 percent for a respiratory disability prior to April 18, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.97, Diagnostic Code 6602. 5. The criteria for a 60 percent disability, rating, but no higher, for a respiratory disability, from April 18, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from May 1974 to May 1994, with additional service in the U.S. Air National Guard. In November 2019, he testified before the undersigned Veterans Law Judge in a videoconference hearing. A copy of the hearing transcript is of record. The Veteran’s counsel has argued that a claim of entitlement to service connection for tinnitus should be included as part and parcel of his bilateral hearing loss claim. However, the Board notes that the Veteran claimed tinnitus as a separate disability in March 2018. The regional office issued a rating in decision in April 2018 denying his claim. The Veteran did not appeal this decision; thus, it is not before the Board at this time. 1. Entitlement to service connection for left ear hearing loss is denied. The Veteran seeks entitlement to service connection for left ear hearing loss. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) 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 in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for listed chronic diseases, such as sensorineural hearing loss, if they are shown to have manifested to a compensable degree within one year after the Veteran was separated from service or through a showing of “continuity of symptomatology” since service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For purposes of applying VA laws, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, where the preponderance of the evidence is against the claim, the claim for benefits must be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Board finds that the evidence of record does not establish a current diagnosis of left ear hearing loss for VA purposes at any time during or approximate to the pendency of the claim. The first post-service audiometric examination was performed in July 1994, two months after the Veteran’s separation from active duty service. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 10 5 10 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The Veteran submitted an audiological examination report in January 2004. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 10 5 5 0 Speech audiometry testing does not appear on the examination report. The Veteran underwent another VA examination in September 2005. There, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 10 5 10 10 Speech audiometry revealed speech recognition ability of 94 percent in the left ear. The Veteran attended another audiometric evaluation in January 2006. There, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 10 10 5 10 Speech audiometry testing does not appear on the examination report. He went to yet another audiometric examination in January 2007. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 10 5 10 Speech audiometry testing does not appear on the examination report. The Veteran underwent another audiometric examination in January 2008. At that examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 10 10 5 10 Speech audiometry testing does not appear on the examination report. In September 2009, the Veteran was provided another VA examination. There, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 10 10 10 10 Speech audiometry revealed speech recognition ability of 94 percent in the left ear. In January 2010, the Veteran underwent another evaluation. There, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 10 10 15 10 Speech audiometry testing does not appear on the examination report. The Veteran attended another audiometric examination in January 2011. At that examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 5 5 10 5 Speech audiometry testing does not appear on the examination report. In December 2011, the Veteran underwent another VA examination. There, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 20 20 25 25 Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The Veteran had another audiometric evaluation in January 2012. At that evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 5 5 10 5 10 Speech audiometry testing does not appear on the examination report. In February 2013, the Veteran underwent another audiometric evaluation. As it is photocopied, the bar graph presented on the evaluation report is difficult to interpret. However, notably, the administering audiologist observed that there had been no significant change in the results since the baseline test. The Veteran attended another VA examination in August 2016. There, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 20 20 20 15 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. The Veteran attended his most recent VA examination in April 2018. There, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 10 15 20 Speech audiometry revealed speech recognition ability of 100 percent in the left ear. As shown above, the Veteran has been reviewed by audiologists on numerous occasions throughout the appellate period. However, at no point has his claimed left ear hearing loss met the requirements for a hearing loss disability enumerated in 38 C.F.R. § 3.385. While the Board acknowledges that it was unable to interpret the results of the February 2013 private evaluation, it notes that the administering audiologist observed that there had been no significant change in the results since the baseline test. As the Veteran’s previous tests (baseline) do not reveal left ear hearing loss that comports with 38 C.F.R. § 3.385, logic dictates concluding that this examination did not reflect such either. Absent probative evidence that the Veteran has left ear hearing loss within VA standards, there is no valid claim for entitlement to service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Full consideration has been given to the Veteran’s assertions. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the presence of a hearing loss disability for VA purposes, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Although the Veteran is competent to report diminished hearing, he is not competent to report specific results of audiometric and word recognition testing, as required by 38 C.F.R. § 3.385, nor is there any indication he is competent to provide a diagnosis of sensorineural hearing loss, or that he received any special training or acquired medical expertise in evaluating hearing disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Thus, the Board finds the medical evidence of record, including audiometric and speech recognition testing, is of greater probative value than the Veteran’s lay statements. As the competent, credible medical evidence of record shows that the Veteran has not had a current diagnosis of a left ear disability as defined by regulation at any time during the current appeal, the preponderance of the evidence weighs against the claim and it must be denied. The Veteran is encouraged to reapply for service connection for left ear hearing loss if and when his 1) auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; 2) or 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. 2. Entitlement to a disability rating in excess of 30 percent for a respiratory disability, prior to April 18, 2019, is denied. 3. A 60 percent disability rating, but no higher, for a respiratory disability is granted, effective April 18, 2019. The Veteran maintains entitlement to a rating in excess of 30 percent for his service-connected reactive airway disease, currently evaluated under Diagnostic Code 6602. As he filed in his increased rating claim in October 2011, the Board will review all evidence from one year prior to that date to determine whether a higher evaluation is warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from service-connected disability; separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Diagnostic Code 6602 specifies that Forced Expiratory Volume in one second (FEV-1) of 56- to 70-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 56 to 70 percent, or; intermittent inhalational or oral bronchodilator therapy, is rated 30 percent disabling. In order to receive a higher 60 percent disability rating, the evidence must show FEV-1 of 40-to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.97. In order to receive a 100 percent disability rating, evidence must show FEV-1 of less than 40 percent predicted, or; FEV-1/FVC of less than 40 percent, or: more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Id. In November 2011, the Veteran underwent a VA examination for his respiratory condition. There, the Veteran reported that his disability began with sudden shortness of breath and wheezing due to his exposure to chemicals while serving as a firefighter. The examiner noted that the Veteran’s respiratory condition did not require the use of oral or parenteral corticosteroid medications. He noted that the Veteran’s condition did require the use of inhaled medications, including inhalational bronchodilator therapy and inhalational anti-inflammatory medication. It also required the daily use of oral bronchodilators. Antibiotics and oxygen therapy were not required. The further examiner observed that the Veteran had a history of asthma attacks that required physician visits for care of exacerbations less frequently than monthly. The Veteran did not have any episodes of respiratory failure. Pulmonary function testing (PFT) was performed. The PFT results documented were from September 2009. Pre-bronchodilator, the Veteran’s FEV-1 was 70.9 percent predicted and his FEV-1/FVC was 78 percent. The examiner noted that the FEV-1/FVC percentage most accurately reflected the Veteran’s current pulmonary function. However, contrarily, in another section of the examination report he indicated that the results of the testing did not reflect the Veteran’s current pulmonary function. Exercise testing was not performed. The Veteran underwent additional pulmonary function testing in August 2012. The standard study revealed that the Veteran’s FEV-1 was 66.5 percent predicted and his FEV-1/FVC was 80 percent. After use of the bronchodilator, the Veteran’s FEV-1 was 71 percent predicted and his FEV-1/FVC was 85 percent. More testing was performed in October 2012. The standard study revealed that the Veteran’s FEV-1 was 44.4 percent predicted and his FEV-1/FVC was 65 percent. The examiner who performed the testing observed moderate severe mixed obstructive/restrictive ventilatory defect with moderate decrease in diffusion capacity. She wrote that the FEV-1/FVC ratio most closely reflected the pulmonary condition, asthma. As the Veteran’s VA examination report contained a contradictory statement, an addendum from the November 2011 examiner was requested for clarification. The examiner provided an addendum opinion in November 2012. He indicated that since the November 2011 examination the Veteran had had intermittent PFT twice. His most recent PFT, dated October 2012, reflected an FEV-1/FVC (corrected transcription error) ratio of 65 percent. The examiner noted that the interpretation of this PFT was marked to severe mixed obstructive/restrictive ventilatory defect. He wrote that the FEV-1/FVC ratio was what most closely reflected the pulmonary condition of asthma. In May 2013, the same examiner reviewed the claims file again, including the updated PFT results, and concluded that the values properly reflected the Veteran’s current condition. The Veteran underwent another VA examination in August 2016. There, the Veteran reported that he was initially diagnosed with asthma and later reactive airway disease. He stated that he used Albuterol, Advair, and Singulair for management of his symptoms, which have generally remained the same. The examiner noted that the Veteran’s condition did not require the use of oral or parenteral corticosteroid medications. He noted that the Veteran’s condition did require the daily use of inhaled medications, including inhalational bronchodilator therapy and inhalational anti-inflammatory medication. The examiner observed that the Veteran’s condition did not require use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. While asthma was diagnosed, the Veteran denied any asthma attacks with episodes of respiratory failure in the past twelve months. Further, the Veteran denied physician visits for required care of exacerbations. A chest X-ray was performed, and the results were negative. PFT results pre-bronchodilator were as follows: his FEV-1 was 66 percent predicted and his FEV-1/FVC was 80.6 percent. Post-bronchodilator, his results were as follows: his FEV-1 was 70 percent predicted and his FEV-1/FVC was 84.9 percent. The examiner noted that the Veteran’s FEV-1 percent predicted most accurately reflected his level of disability. Exercise capacity testing was not performed and there were no other significant test findings and/or results. The examiner further noted that the Veteran’s respiratory disability meant that he can only walk for about ten minutes before becoming short of breath. Most recently, the Veteran submitted a letter dated May 2019 from his private physician. She stated that he had a long history of moderate persistent asthma for which he takes Advair, ProAir, and Singular daily. She explained that Advair is a combination of long-acting beta-2 agonist with inhaled corticosteroid and is used daily for maintenance therapy. She also described Singulair as a leukotriene inhibitor used daily for maintenance therapy as well. The Veteran’s physician indicated that his most recent PFT result from April 2019 reflected FEV-1 at 55 percent predicted. She supplied a copy of the report. Further, she noted that the Veteran was unable to ambulate distances greater than fifteen feet without experiencing shortness of breath and wheezing which required use of a rescue inhaler. The Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran’s service-connected respiratory disability prior to April 18, 2019. The Board will discuss the criteria for a higher 60 percent disability rating in turn. During the period prior to April 18, 2019, there is one documented instance of the Veteran’s FEV-1 at 44.4 percent predicted, meeting the requirement for a 60 percent evaluation that details a FEV-1 at 40-to 55 percent predicted. However, both the competent, credible examiner who performed the PFT and the competent, credible reviewing VA examiner who proffered an addendum opinion using its data indicated that the Veteran’s FEV-1/FVC at that time (85 percent) most closely reflected the Veteran’s service-connected respiratory condition. Additionally, none of the other FEV-1 evaluations during this portion of the appeal period are in this range, or even close to it. They are all significantly higher (70.9 percent predicted, 66.5 percent predicted, 71 percent predicted, 66 percent predicted, and 70 percent predicted). This reading is an aberration of the trend seen in the other results. The fact that medical personnel found this evaluation non-reflective of the Veteran’s condition, utilizing FEV-1/FVC instead, and the fact that this reading is singular, with no others within this range during this portion of the appellate period weighs against its use to support a higher, 60 percent disability rating. Further, there are no documented instances of the Veteran’s FEV-1/FVC being evaluated at 40 to 55 percent prior to April 18, 2019. Thus, this criteria for a higher, 60 percent disability rating has not been met during this portion of the appeal period. Additionally, while in November 2011 the Veteran stated that he had a history of asthma attacks that required physician visits for care of exacerbations, he indicated that these visits occurred less frequently than once a month. At his later August 2016 examination, he denied such physician required visits altogether. Thus, the Veteran has not satisfied the 60 percent evaluative criteria requiring at least monthly visits to a physician for required care of exacerbations. Finally, during this portion of the appeal period, the Veteran was not intermittently (at least three per year) using courses of systemic (oral or parenteral) corticosteroids. As discussed above, the Veteran has not met any of the requirements necessary for a higher, 60 percent rating in the period prior to April 18, 2019. However, the Board finds that from April 18, 2019, a higher, 60 percent evaluation is warranted. On April 18, 2019, the Veteran’s PFT results reflected FEV-1 at 55 percent predicted. The May 2019 letter from the Veteran’s primary care provider prominently notes this result, appearing to indicate that this evaluation accurately reflects the most current severity of the Veteran’s disability. This is the most recent PFT result of record (the previous results are from three years prior). There are no other contemporaneous PFT results to review and compare this result to. The Board resolves all reasonable doubt in the Veteran’s favor and finds this result to be an adequate assessment of the Veteran’s current disability. Therefore, it awards an increased, 60 percent disability rating effective April 18, 2019, the date of the test. A higher, 100 percent disability rating is not warranted as the evidence of record does not show FEV-1 of less than 40 percent predicted, or; FEV-1/FVC of less than 40 percent, or: more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. In summation, prior to April 18, 2019, a rating in excess of 30 percent for the Veteran’s service-connected disability is denied. From April 18, 2019, a 60 percent disability rating, but no, higher, is granted. REASONS FOR REMAND Entitlement to a rating in excess of 0 percent for right ear hearing loss is remanded. The Veteran seeks a disability rating in excess of 0 percent for his service-connected right ear hearing loss. During his November 2019 hearing, he testified that his right ear hearing loss has worsened since the administration of his last VA examination, which the record reflects was in April 2018. As the Veteran has alleged worsening of his right ear hearing loss and it has been two years since the last examination, the Board finds that a remand is required to provide a contemporaneous examination to assess the current severity of the disability. Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to adequately support the decision in an appeal for an increased rating). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any relevant, outstanding VA and private treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right ear hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.