Citation Nr: 21000161 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-39 707 DATE: January 4, 2021 ORDER For the increased rating period from July 7, 2010, a higher (compensable) rating for bilateral hearing loss is denied. Service connection for a respiratory condition of chronic allergic rhinitis (claimed as a sinus condition) is granted. FINDINGS OF FACT 1. For the increased rating period from July 7, 2010, the service-connected hearing loss disability manifested as no worse than Level II hearing acuity in the right ear and no worse than Level II hearing acuity in the left ear. 2. The Veteran has a current disability of chronic allergic rhinitis. 3. Symptoms of chronic rhinitis began during service and have been present since service separation. CONCLUSIONS OF LAW 1. For the increased rating period from July 7, 2010, the criteria for a higher (compensable) rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a respiratory disorder of chronic allergic rhinitis (claimed as sinus condition) have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, served on active duty from October 1985 to March 1986, from March 2005 to July 2006, and from December 2009 to August 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision from the Regional Office (RO), which, in pertinent part, denied an increased rating for bilateral hearing loss and denied service connection for a sinus condition. The Board has recharacterized the issue on appeal as service connection for a respiratory condition, to reflect the current diagnosis of chronic allergic rhinitis. In February 2019, the Veteran testified at a Travel Board hearing in Nashville, Tennessee, before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This case was previously before the Board in August 2019, where the issues on appeal were remanded to obtain a VA examination and medical opinion. The Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the August 2019 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The Board finds that the duties to notify and assist regarding an increased rating for bilateral hearing loss have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. With regard to service connection for a respiratory disorder, the Board finds that the duties to notify and assist in this case have been rendered moot by the grant of service connection for chronic allergic rhinitis, which is a full grant of the benefits sought on appeal. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 1. Rating Bilateral Hearing Loss from July 7, 2010 The bilateral hearing loss disability is assigned a noncompensable (0 percent) disability for the rating period remaining on appeal under Diagnostic Code 6100. 38 C.F.R. § 4.85. At the February 2019 Board hearing, the Veteran testified that his hearing has worsened since the February 2012 VA audiology examination. See February 2019 Board hearing transcript. After a review of all the evidence, both lay and medical, the Board finds that, for the rating period from July 7, 2010, the weight of the evidence is against finding that a higher (compensable) disability rating for bilateral hearing loss is warranted. During this period, hearing loss has been productive of no more than Level II hearing acuity in right ear and no more than Level II hearing acuity in the left ear, at their worst, which is commensurate with the noncompensable (0 percent) disability rating assigned under Diagnostic Code 6100. VA treatment records that are most relevant to the rating period indicate that the Veteran has reported longstanding bilateral hearing loss, but do not describe any specific situations where he has difficulty hearing. Audiometrics revealed mild to moderate sensorineural hearing loss in both ears. See February 2011 VA treatment record. Treatment records relevant to the rating period do not include audiometric data showing that the bilateral hearing loss disability meets the criteria for a compensable rating. A VA audiology examination was provided on February 6, 2012, at which time pure tone thresholds, in decibels (dB), were recorded as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 35 40 45 45 LEFT 35 40 45 45 Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 92 percent in in the right ear and 88 percent in the left ear. The average decibel loss for the right ear was 41. From Table VI of 38 C.F.R. § 4.85, Roman Numeral I is determined for the right ear. The average decibel loss for the left ear was 41. From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is determined for the left ear. A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I, the better ear, with column I, the poorer ear. An exceptional hearing pattern under 38 C.F.R. § 4.86 is not shown in this case. An additional VA audiology examination was provided on September 8, 2020, at which time pure tone thresholds, in decibels (dB), were recorded as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 35 50 55 60 LEFT 30 45 55 60 Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 84 percent in in the right ear and 88 percent in the left ear. The average decibel loss for the right ear was 50. From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is determined for the right ear. The average decibel loss for the left ear was 48. From Table VI of 38 C.F.R. § 4.85, Roman Numeral II is determined for the left ear. A 0 percent rating is derived from Table VII of 38 C.F.R. § 4.85 by intersecting row I, the better ear, with column I, the poorer ear. An exceptional hearing pattern under 38 C.F.R. § 4.86 is not shown in this case. Overall, the audiometric tests during the relevant rating period reflect no greater than a Level II hearing acuity in the right ear, and no greater than Level II hearing acuity in the left ear, at their worst, during the relevant rating period. Exceptional patterns of hearing impairment were not evidenced in this case. Such findings demonstrate that a disability rating in excess of 0 percent is not warranted for the period on appeal from July 7, 2010 to present. 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. For these reasons, the preponderance of the evidence weighs against a finding that the bilateral hearing loss disability more closely approximated a higher (compensable) disability rating at any point during the initial rating period from November 22, 2017. See 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86. 2. Service Connection for a Respiratory Condition (Chronic Allergic Rhinitis) The Veteran generally contends that service connection for a respiratory condition, claimed as a sinus condition, is warranted. The Veteran testified that symptoms include runny nose, watery eyes, and cough at times. The Veteran believes that his respiratory symptoms are related to exposure to heavy sandstorms during deployment in Iraq. See February 2019 Board hearing transcript. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in service. Initially, the Board finds that the evidence shows current diagnoses of chronic allergic rhinitis. See August 2006 VA treatment record, September 2020 VA examination report. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was an onset of symptoms of a respiratory disorder in service and since service separation that were later diagnosed as chronic allergic rhinitis, i.e., whether chronic allergic rhinitis began during service to be directly “incurred in” service. Service personnel records shows that the Veteran was deployed to Iraq from June 2005 to June 2006 and from February 2010 to July 2010. The evidence of record shows an onset of respiratory symptoms during the Veteran’s first deployment in Iraq. An October 2005 service treatment note shows complaints of stuffy head, clogged sinus, and nasal drainage for two days. Diagnosis was sinus congestion. A May 2006 post-deployment screening indicates that the Veteran reported concerns about inhalational exposure during his deployment. The Veteran was also seen for treatment of sinus infections in June 2010 during his second deployment to Iraq. During a post-deployment screening in July 2010, the Veteran reported problems with sinus irrigation and cough lasting more than three weeks. See October 2005, May 2006, June 20066, July 2010 service treatment records. Post-service VA treatment notes show treatment for problems with chronic rhinitis within two months of completing the first deployment to Iraq from March 2005 to July 2006. While x-rays have not shown any evidence of sinusitis, the Veteran has been followed for chronic rhinitis since August 2006 (two months after deployment). See August 2006, March 2007, May 2018 VA treatment records. At a VA sinusitis/rhinitis examination in September 2020, the Veteran reported problems with runny nose, sinus drainage, and watery eyes that he believes are related to exposure to sandstorms and burn pits during service. The VA examiner diagnosed allergic rhinitis and opined that it is less likely than not that the Veteran’s allergic rhinitis is related to service. The VA examiner reasoned that there is no medical literature that shows a direct correlation of exposure to sandstorms or burn pits with the diagnosis of chronic allergic rhinitis. (Continued on the next page)   This opinion in September 2020 is of little probative value as the VA examiner did not consider the fact of onset set of respiratory symptoms including sinus infections with congestion and runny nose with nasal drainage during the Veteran’s deployment. The VA examiner also did not address the significance of evidence of treatment for similar symptoms, diagnosed as chronic rhinitis since August 2006, two months after the first deployment. Additionally, the Veteran provided multiple medical articles that indicate that veterans who deployed to Iraq had increased problems with lingering respiratory symptoms compared to those who did not. See October 2014, July 2017 articles. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran). The evidence is at least in equipoise on the question of whether the Veteran had respiratory symptoms that began during service and continued since service separation, which symptoms were later diagnosed as chronic allergic rhinitis, thus tending to show direct service incurrence. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a), (d). The Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that symptoms of a respiratory disability (later diagnosed as chronic rhinitis) began in service, so was directly “incurred in” service. The finding that the Veteran has had rhinitis symptoms since service is supportive of the overall direct service connection claim because it tends to show that the symptoms that began in service were the basis for the later diagnosed chronic allergic rhinitis. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for direct service connection for allergic rhinitis have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Moore 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.