Citation Nr: 21000867 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-20 852 DATE: January 6, 2021 REFERRED Entitlement to service connection for residuals of ear trauma (claimed as busted and damaged ear drums) has been raised by the record in a March 2017 statement, but has not been adjudicated by the agency of original jurisdiction (AOJ). Thus, the Board does not have jurisdiction over it, and it is referred to the AOJ for initial adjudication. 38 C.F.R. § 19.9(b) (2016). ORDER Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran receives a 10 percent rating for tinnitus, which is the maximum allowed by applicable regulations. The record does not reflect exceptional or unusual impairment, such as marked interference with employment or frequent periods of hospitalization, to the extent that an extraschedular rating is appropriate. 2. The most probative evidence does not show that the Veteran’s bilateral hearing loss manifested functional impairment to the extent that a compensable rating may be assigned during the rating period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for tinnitus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.87. 2. The criteria for entitlement to a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.85, 4.86. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1961 to November 1963. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a decision issued by the Department of Veterans Affairs (VA), and have been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. Due to the complexity of the procedural history of these matters, a brief review and explanation is necessary. In February 2011, the Veteran filed a request for increased ratings for his service-connected disorders, to include bilateral hearing loss and tinnitus. A March 2013 rating decision continued the assigned 10 percent rating for tinnitus and the non-compensable rating for bilateral hearing loss. The Veteran filed a Notice of Disagreement in June 2013. He stated, among other things, that “the tinnitus and hearing loss are part of my problems resulting from the original explosion which also included busted and damaged ear drums.” In July 2014, the Veteran stated that “damage to the ears has caused a number of symptoms, of which the constant, ever-present tinnitus is one and, of course, the irremediable hearing loss is another. Others have been such things as increased sensitivities to sound, neurological damage possibly affecting eyesight, interference with speech, et cetera.” The matter was first before the Board in July 2016. At that time, the Board determined that the Veteran had raised a claim of residuals of trauma to the ears (claimed as busted and damaged ear drums), and referred the matter to the AOJ for initial adjudication. See 38 C.F.R. § 19.9. The increased rating claims for hearing loss and tinnitus were remanded to procure outstanding medical records and for a VA examination. The Board observes that the remand directives also asked the examiner to address the Veteran’s claimed symptoms of pain, hypersensitivity to sound, interference with speech, neurological effect to his eyesight, etc. and opine as to whether any of these symptoms was related to hearing loss or tinnitus or some other disorder. The record reflects that the AOJ did not take any action on the referred claim. The Veteran appeared for a VA examination in September 2016. The examiner observed, among other things, that the Veteran was “not compliant with middle ear assessment…so exact nature of identified air/bone gaps could not be assessed.” She observed that there was no objective evidence of a burst eardrum in service medical records, but found evidence of present scarring on the eardrums. She found that further evaluation of the Veteran’s subjective ear pain was not clinically indicated for compensation and pension purposes and that there was conflicting evidence in the record as to the Veteran’s subjective reports of hypersensitivity to sound. She further concluded that there is no correlation in medical literature regarding decreased hearing and effects on eyesight. The Veteran submitted lay statements that were received in April 2017. He wrote, among other things, that the adjudications of his appeal did not mention busted and damaged ear drums and associated issues of pain, which he asserted were related to an explosion and concussion during a weapons training accident in military service. He stated that he underwent an “outsourced hearing test” that contained a pressure test of his ear drums. He stated that the test caused excessive pain and accelerated tinnitus in both ears, which lasted for three months. In September 2017, the Board noted that the issue of service connection for ear damage had been referred to the AOJ, but that no action had been taken on the referral. The issue was again referred for the AOJ’s initial consideration. The Board denied increased ratings for tinnitus and hearing loss. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2018, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed that the Board erred in failing to adequately consider the symptoms of ear pain, hypersensitivity to sound, interference with speech, and neurological effects to eyesight. The parties observed that the Board failed to consider whether the Veteran’s symptoms were contemplated by the rating schedule or whether a referral for an extraschedular rating was necessary. The parties further agreed that the Board failed to identify whether the complaints of ear pain were to be associated with the referred claim, or with the increased ratings claims adjudicated by the Board’s decision. Lastly, it was determined that the Board should discuss the significance of the September 2016 VA examiner’s finding that she was unable to interpret the Veteran’s ipsilateral and contralateral acoustic reflexes due to “artifact.” The matters returned to the Board in November 2018. At that time, the Board determined that a referral for consideration on an extraschedular basis was not warranted because the symptoms highlighted by the JMR are not related to the Veteran’s hearing loss and tinnitus. In reaching such conclusion, the Board considered the medical evidence, including the September 2016 VA examination report, and the fact that the Veteran appeared to assert that his hearing loss and tinnitus were themselves caused by ear damage resulting from an in-service incident. The Board again referred the claim of service connection for ear damage to the AOJ for a third time. The increased rating claims for hearing loss and tinnitus were remanded for a VA medical opinion interpreting the significance of the inability to test the ipsilateral and contralateral acoustic reflexes. A medical opinion was obtained in October 2019. The Veteran’s representative submitted a brief in October 2020. He contended that the Veteran’s symptoms of “busted and damaged ear drums, pain, hypersensitivity to sound, interference with speech, and neurological effects to his eyesight were not addressed or considered by VA as instructed” and requested further remand. At present, the Board does not see a reason to revise its November 2018 finding that the Veteran’s complaints of ear pain, hypersensitivity to sound, interference with speech, and neurological effects to eyesight are part of a separate claim of service connection for residuals of ear trauma. The Veteran has not contended, and the medical evidence of record does not suggest, that his pain and other reported residuals of ear trauma are proximately due to, a result of, or aggravated by tinnitus or hearing loss. Rather, he has contended that his residual symptoms (to include ear pain, hypersensitivity to sound, interference with speech, and neurological effects) should be service-connected as a result of ear trauma occurring during military service, which is not an issue that is presently within the Board’s jurisdiction. 38 U.S.C. §§ 7104, 7105. Therefore, in this decision, the Board will consider the Veteran’s symptoms of ringing in the ears and hearing impairment in regard to the claims for increased ratings for tinnitus and bilateral hearing loss that are presently on appeal. The Board has considered the representative’s brief. He is correct to the extent that VA has yet to formally adjudicate a claim for the symptoms of ear pain, hypersensitivity to sound, interference with speech, and neurological effects to eyesight. However, as those symptoms are part of a separately raised claim of service connection, a further remand of the increased rating claims at issue would serve no purpose and needlessly delay adjudication without benefit to the Veteran. The Board is aware that it has referred the claim of service connection for residuals of ear trauma to the AOJ for adjudication on three prior occasions without a response. As the AOJ has repeatedly ignored the Board’s referrals, the Veteran is encouraged to submit an application for service connection for residuals of ear trauma on the appropriate form prescribed by the Secretary. 38 C.F.R. § 3.151. 1. Entitlement to a rating in excess of 10 percent for tinnitus The Board finds that the most probative evidence does not support entitlement to a rating in excess of 10 percent for tinnitus at any time during the rating period. Tinnitus is rated under 38 C.F.R. § 4.87, DC 6260, which provides a 10 percent rating for recurrent tinnitus. This is the maximum rating allowed for tinnitus under the rating schedule. See Smith v. Nicholson, 451 F.3d 1344, 1351 (Fed. Cir. 2006). The Veteran has been in receipt of a 10 percent rating for the entirety of the rating period. Thus, a higher rating is not appropriate under the rating schedule. The Board has considered whether an extraschedular rating may be assigned under 38 C.F.R. § 3.321. However, as discussed previously, the most probative evidence of record does not reflect that the Veteran’s tinnitus results in exceptional or unusual impairment to the extent that an extraschedular rating may be assigned. Specifically, the Veteran has reported that his tinnitus has caused loud ringing in the ears that interferes with his hearing, which is appropriately considered by the rating schedule. See 38 C.F.R. §§ 4.10, 4.87, DC 6260. Moreover, the record does not reflect that the Veteran’s tinnitus results in marked interference with employment or frequent periods of hospitalization to the extent that an extraschedular evaluation is appropriate. See Thun v. Peake, 22 Vet. App. 111 (2008). Lastly, although the Veteran has reported the existence of ear pain and other symptoms resulting from ear trauma, the Board has herein determined that those other symptoms are part of a separately raised claim of service connection for residuals of ear trauma which has been referred to the AOJ for further action. In sum, a rating in excess of 10 percent for tinnitus may not be granted. 2. Entitlement to a compensable rating for bilateral hearing loss The Board finds that the most probative evidence does not support entitlement to a compensable rating for bilateral hearing loss at any point during the rating period. Therefore, the claim may not be granted. Disability ratings for hearing loss are determined by mechanically applying the rating criteria to certified audiometric testing results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Speech discrimination scores must be obtained using the Maryland CNC test. Id. The Board notes that a previous decision in September 2017 provided an in-depth listing of the medical evidence prior to that time. Rather than repeat such listing herein, the Board incorporates it by reference. In response to the issue raised in the Court’s JMR regarding the significance of the 2016 VA examiner’s inability to interpret the ipsilateral and contralateral acoustic reflexes due to “artifact”, the AOJ obtained a medical opinion in September 2019. The opinion provider, P.C. (Au.D.), opined that “[a]rtifact during acoustic reflex measurement can be caused by patient movement or certain middle ear pathologies, and it is possible that subsequent attempts could yield more reliable results. However, degree of hearing loss is calculated based on pure tone thresholds. Measurement of acoustic reflexes can be useful in helping to rule out certain retrocochlear pathologies as well as malingering, but it is not used in calculating severity of a hearing loss. Therefore, inability to interpret acoustic reflexes due to artifact is not a significant finding in this claimant’s case.” The Veteran’s VA medical records have been reviewed. However, such records do not show evidence of functional impairment to the extent that a compensable rating may be assigned for the Veteran’s bilateral hearing loss at any time during the rating period. 38 C.F.R. § 4.2. After careful review of the record, the Board finds that a compensable rating may not be assigned for bilateral hearing loss. As previously discussed in the Board’s decision in 2017, the Veteran’s VA examination reports do not show a level of functional impairment to the extent that a higher rating may be assigned. The parties to the JMR did not challenge the Board’s application of the rating schedule to the examination reports and the Veteran has not contended that such reports show entitlement to a higher rating. Likewise, the Veteran’s VA medical records do not reflect functional impairment to the extent that a higher rating may be assigned. P.C. clarified that the 2016 VA examiner’s finding of an inability to interpret the ipsilateral and contralateral acoustic reflexes due to “artifact”, was not significant in the Veteran’s case and is not used in calculating the severity of hearing loss. As P.C.’s opinion is consistent with his expertise as a medical professional, the Board affords his opinion significant probative weight. The Board has considered whether an extraschedular rating may be assigned under 38 C.F.R. § 3.321. However, as discussed previously, such a rating is not appropriate in this case because the most probative evidence of record does not reflect that the Veteran’s bilateral hearing loss results in exceptional or unusual impairment. Specifically, the Veteran has reported having difficulty hearing, which is appropriately considered by the rating schedule. See 38 C.F.R. §§ 4.10, 4.85, 4.86. Moreover, the record does not reflect that the Veteran’s bilateral hearing loss results in marked interference with employment or frequent periods of hospitalization to the extent that an extraschedular evaluation is appropriate. Lastly, although the Veteran has reported the existence of ear pain and other symptoms resulting from ear trauma, the Board has herein determined that those other symptoms are part of a separately raised claim of service connection for residuals of ear trauma which has been referred to the AOJ for further action. The Board is sincerely grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence does not reach the level of equipoise in the claim for a compensable rating for bilateral hearing loss. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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. § 20.1303.