Citation Nr: 20061663 Decision Date: 09/18/20 Archive Date: 09/18/20 DOCKET NO. 16-34 973 DATE: September 18, 2020 ORDER Entitlement to a compensable rating for bilateral hearing loss as a residual of and secondary to vertigo is denied. REMANDED Entitlement to initial compensable rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to increased initial rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. Entitlement to compensable rating for degenerative arthritis of the left knee is remanded. Entitlement to increased rating in excess of 10 percent for left shoulder impingement prior to May 23, 2016, and in excess of 20 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for intervertebral disc syndrome (IVDS) of the thoracolumbar spine is remanded. FINDING OF FACT The Veteran did not demonstrate a hearing loss upon audiometric and speech recognition testing of his bilateral hearing acuity for VA purposes. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss as a residual of and secondary to vertigo have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.84, Diagnostic Code 6100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from August 1996 to June 2006 and from November 2006 to April 2014. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matters were remanded to the RO for further development in an October 2018 Board decision. The case has been returned for adjudication. Bilateral Hearing Loss The Veteran contends that he has bilateral hearing loss as a residual of and secondary to his service-connected vertigo. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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(a); 38 C.F.R.§3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for bilateral hearing impairment as a residual of vertigo For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies (500, 1000, 2000, 3000, 4000 Hertz) is 40 decibels or greater; 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 when speech recognition scores using the Maryland CNC Test are less than 94 percent. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The threshold for normal hearing is from 0 to 20 decibels. Id. at 157. The Veteran was afforded an ear conditions examination in March 2018 in which he claimed intermittent hearing loss bilaterally occurring 3 times a week for 3 to 5 minutes with episodes of vertigo. In October 2019, the Veteran underwent an audiology examination to determine whether his hearing loss was at least as likely as not (50 percent or greater probability) aggravated by, proximately due to or the result of his service-connected vertigo. The evaluating audiologist reviewed the claims file; considered the Veteran’s lay impressions; performed speech recognition testing and conducted an audiogram evaluation. This audiologist’s audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 20 5 LEFT 5 10 20 15 15 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear. The examiner indicated that the Veteran did not have objective evidence of a sensorineural hearing loss in the frequency range of 500-4000 Hz as there were not 3 threshold shifts of 26 or greater or a single threshold shift of 40 or greater. The Veteran’s highest threshold shift was 20 in each ear. In addition, the Veteran’s speech recognition scores were not less than 94 percent. The examiner offered his opinion that the Veteran did not demonstrate hearing loss on testing such there is no hearing loss and in the absence of hearing loss demonstrated on objective testing, the Veteran’s claim of bilateral hearing loss is less likely than not aggravated by, proximately due to or the result of the Veteran’s service-connected vertigo. The Board recognizes the Veteran’s sincere belief that his vertigo results in intermittent hearing loss. The Veteran is competent to describe his symptoms. See Jandreau, supra. However, the criteria for hearing loss are set forth by law. The Board does not have the authority to make a finding inconsistent with the provisions of VA law. Accordingly, a compensable rating for bilateral hearing loss as a residual of and secondary to vertigo is not warranted as there is no hearing loss for VA purposes. There are no doubts to be resolved. Gilbert, supra. REASONS FOR REMAND 1. Entitlement to initial compensable rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. 2. Entitlement to increased initial rating in excess of 10 percent for degenerative arthritis of the right knee is remanded. 3. Entitlement to compensable rating for degenerative arthritis of the left knee is remanded. 4. Entitlement to increased rating in excess of 10 percent for left shoulder impingement prior to May 23, 2016 and in excess of 20 percent thereafter is remanded. 5. Entitlement to an initial rating in excess of 10 percent for intervertebral disc syndrome (IVDS) of the thoracolumbar spine is remanded. Each of the above-listed claims was remanded for further development, including a VA examination, in an October 2018 Board decision. In April 2019 an examination scheduling request was forwarded to the contracting organization for 6 of the Veteran’s claims, including the 5 above-listed claims. In August 2019 the Board sent a development letter to the Veteran regarding obtaining private treatment records. The Veteran attended an audiology examination scheduled on October 18, 2019. Each of the remaining 5 examinations were cancelled by the contractor organization citing the Veteran’s unavailability or a no show as the reason for cancellation. The claims file reflects that the Veteran called VA on October 15, 2019 to reschedule his 10/15/2019 C & P appointments for the remand appeal dated 10.30.2019 (sic). The Veteran advised VA that he missed the examinations because his transportation arrangement fell through at the last minute. The Veteran indicated that he would make the rescheduled examinations. The RO proceeded to rate the claims based upon the evidence of record. As there was no evidence of an increase in severity of the disabilities, the RO determined that increased evaluations were not warranted. The Board observes that during the Veteran’s contact with the VA on October 15, 2019 he offered both good cause for his failure to appear for the 5 examinations scheduled that day and expressed his interest in attending rescheduled examinations. Accordingly, good cause having been shown, the above 5 claims are remanded for rescheduling of the VA examinations. The Veteran is to be reminded of the consequences of not attending the rescheduled examinations. The matters are REMANDED for the following actions: 1. Obtain and associate with the record all relevant VA and any private treatment records identified by the Veteran. All records/responses received must be associated with the electronic claims file. 2. After the foregoing development is accomplished, schedule the Veteran for VA examinations with qualified clinicians including a psychologist or psychiatrist to evaluate the Veteran’s PTSD. The Veteran is to be reminded of the consequences of not attending the rescheduled examinations, The clinician examiner(s) should address the following: (a) The current nature and severity of the Veteran’s left shoulder impingement, (b) The current nature and severity of the Veteran’s IVDS of the thoracolumbar spine, (c) The current nature and severity of the Veteran’s degenerative arthritis of the left knee, (d) The current nature and severity of the Veteran’s degenerative arthritis of the right knee. and (e) The current nature and severity of the Veteran’s PTSD. All necessary testing should be accomplished. The examiners are asked to provide complete rationales for all opinions and conclusions reached. When formulating her/his examination report, the Board encourages the examiners to seek guidance from, and refer to, medical literature and/or treatises. The Board notes that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable and discernable symptomatology. 3. After completing the above actions, and any follow-up development indicated, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and after allowing an adequate opportunity to respond. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Denise Adams Hill, Associate Counsel 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. § 20.13.