Citation Nr: 21001513 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 12-20 675 DATE: January 8, 2021 ORDER Entitlement to service connection bilateral hearing loss on a direct basis, as related to noise exposure in service, is denied. Entitlement to service connection for right ear hearing loss on a secondary basis, as due to a perforated eardrum, is denied. Entitlement to a disability rating higher than 0 percent for residuals of a perforated right tympanic membrane (eardrum) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) since April 6, 2020, is remanded FINDINGS OF FACT 1. The Veteran does not have a current bilateral, or right ear, hearing loss disability for VA purposes. 2. The Veteran has a service-connected perforated right eardrum for which the rating schedule contemplates a rating of no higher than 0 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss on a direct basis, as related to noise exposure in service, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 2. The criteria for entitlement to service connection for right ear hearing loss on a secondary basis have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2019). 3. The criteria for entitlement to a disability rating higher than 0 percent for residuals of a perforated right eardrum have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.87, Diagnostic Code 6211 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from July 1988 to May 1999. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In December 2017, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). The Veteran was informed of the basis for the RO’s denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103. In a May 2018 Board decision, since partially vacated on another matter, the Board remanded several issues for further evidentiary development. These include entitlement to service connection for hearing loss, and entitlement to a disability rating higher than 0 percent for residuals of a perforated eardrum. In a July 2020 decision, the Board granted TDIU for the period since April 6, 2020, and denied TDIU for the period prior to April 6, 2020. The Board also remanded the issues entitlement to service connection for bilateral hearing loss on a direct basis and entitlement to service connection for right ear hearing loss on a secondary basis, as well as entitlement to an increased (compensable) rating for the service-connected right eardrum perforation. Those matters have been returned to the Board following denial by the Agency of Original Jurisdiction (AOJ). The Board notes that the August 2020 Supplemental Statement of the Case reflects that the matter of entitlement to TDIU for the period prior to April 6, 2020, was being returned to the Board as remaining on appeal. However, that issue is subject to a final Board decision in July 2020. Therefore, the issue is no longer on appeal. There are no subsequent adjudications, including as a component of other rating claims since the final Board decision. Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection—Law and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as “chronic,” to include sensorineural hearing loss, there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran in this case served in the Persian Gulf during the Gulf War. Under 38 U.S.C. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a “qualifying chronic disability” that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. To constitute a “qualifying” chronic disability, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term “objective indications of chronic disability” includes both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to: Fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs and symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, menstrual disorders. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): An undiagnosed illness; the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: Chronic fatigue syndrome; Fibromyalgia; Functional gastrointestinal disorders (excluding structural gastrointestinal diseases); Any diagnosed illness that the Secretary determines warrants a presumption of service-connection; or Any other illness that the Secretary determines meets the following criteria for a medically unexplained chronic multisymptom illness. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2). The applicable presumptive period specified in 38 C.F.R. § 3.317(a)(1)(i) has been extended several times and it currently ends December 31, 2021. Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Impaired hearing will be considered to be a “disability” when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. 38 C.F.R. § 3.385. When audiometric test results at separation from service do not meet the regulatory requirements for establishing a “disability” at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service. Hensley, 5 Vet. App. 155. In a case where the degree of hearing loss noted on a veteran’s entrance examination did not meet VA’s definition of a “disability” for hearing loss under § 3.385, the Veterans Court held that that veteran was entitled to the presumption of soundness under 38 U.S.C. § 1111. Further, the Veterans Court held that the demonstrated hearing loss was not a “defect”; and that the term “defect” should be narrowly interpreted so that it does not encompass a level of hearing impairment that is not considered a “disability” under 38 C.F.R. § 3.385. See McKinney v. McDonald, 28 Vet. App. 15 (2016). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for hearing loss on a bilateral basis, as related to noise exposure in service. Entitlement to service connection for right ear hearing loss on a secondary basis, as due to a perforated eardrum. Service treatment records reveal that when examined in October 1987, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 0 5 10 LEFT 10 5 0 5 10 When examined in March 1989, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 5 15 20 LEFT 20 20 10 10 20 When examined in March 1995, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 0 5 10 LEFT 15 15 15 10 15 When examined in January 1996, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 10 15 LEFT 15 5 0 5 10 When examined in February 1998, pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 10 0 0 5 LEFT 15 5 0 5 10 When examined in February 1999 (service separation), pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 10 LEFT 25 10 0 10 10 At that time, the examiner diagnosed normal clinical findings for the ears and hearing. A physical profile rating of H-1 was assigned. The H stands for hearing and ears. This factor concerns auditory acuity and disease and defects of the ear. The value of 1 means that the Veteran possessed a high level of medical fitness with respect to the ears and hearing; and, consequently, was medically fit for any military assignment (Record 04/16/2003 at 2). A report of medical history completed by the Veteran on the same day as the examination reveals the reported a history of hearing loss, described as “I have hard time hearing people sometimes” (Record 04/16/2003 at 4). The Veteran was separated from service on May 29, 1999. He filed the current claim in 2008, almost a decade later. The Veteran was examined in December 2008 (Record 12/13/2008). Speech recognition scores for both ears were 100 percent. Pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 25 LEFT 15 20 25 25 25 The examiner concluded that there was no hearing loss pathology to render a diagnosis. VA outpatient records include Audiology Consults on August 8, 2012, August 11, 2014, and April 29, 2016, each of which finds normal hearing at 500 Hertz through 3000 Hertz, but mild hearing loss bilaterally at 4000 Hertz (Record 09/23/2019). The Board remanded these claims to obtain the actual audiograms from these examinations. The AOJ was able to obtain them, and they reflect the following findings. The August 8, 2012, examination (Record 07/25/2020 at 8) reflects speech recognition scores of 100 percent in both ears, and the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 20 25 30 LEFT 25 20 20 25 30 The August 11, 2014, examination (Record 07/25/2020 at 2) reflects speech recognition scores of 100 percent in both ears, and the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 25 30 LEFT 20 15 20 25 30 The August 29, 2016, examination (Record 07/25/2020 at 5) reflects speech recognition scores of 100 percent in the right ear and 96 percent in the left ear, and the following pure tone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 20 25 LEFT 15 20 25 25 25 The Veteran was afforded a VA examination in October 2019, in response to the Board’s remand. The examiner noted that the Veteran’s military occupational specialty was Motor Transport Operator (88m) which had a moderate probability for hazardous noise exposure. He also received an Expert Marksmanship Qualification Badge with a Rifle Bar. However, the examination completed on February 9, 1999, indicated normal hearing at service separation. An October 2019 VA examination findings reveals pure tone thresholds as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 25 25 20 LEFT 30 30 20 25 30 Speech recognition was 100 percent in each ear (Record 10/08/2019). The examiner found sensorineural hearing loss in both ears. The Veteran described the effect of this as: "I have to turn my TV up. My phone volume is always on high. My left ear is more dominant, and I find myself leaning that ear towards the speaker." The examiner opined that the diagnosed left ear hearing loss was not related to service by probability of at least 50 percent. The rationale was that the examiner cannot determine the etiology of the Veteran’s left ear hearing loss without resorting to speculation. The rationale was that the Veteran had normal hearing at service separation. After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection have not been met on either a primary or secondary basis. Based on the October 2019 report, the Veteran has a left ear hearing loss disability for VA purposes in the left ear only. The pure tone thresholds in the left ear are 26 or above for 3 of the frequencies specified in 38 C.F.R. § 3.385. These criteria are not met at any time for the right ear. The finding of a current disability is governed by specific clinical findings for speech recognition and pure tone thresholds. This applies to both primary service connection and secondary service connection. These requirements were not satisfied for two decades after service for the left ear, and are still not satisfied for the right ear. While the Veteran currently has a diagnosis of left ear hearing loss for VA purposes, the opinion evidence is against the claim to that extent. The examiner based the opinion on an inability to provide a non-speculative opinion. However, the examiner provided a rationale for that opinion, in that the Veteran’s hearing was normal at service separation. The Board reiterates that it was normal for many years after service separation as well. The Board has considered the Veteran’s lay statements regarding the etiology of his left ear hearing loss. However, given the temporally remote onset of this disability, he is not competent to determine its etiology. This requires medical knowledge as to causes of hearing loss. Regarding the claim for right ear hearing loss on a secondary basis, the Board simply notes that the Veteran does not have right ear hearing loss under VA regulations. 38 C.F.R. § 3.385. To summarize, the Board finds that there is no hearing loss disability for VA purposes in the right ear, and the opinion evidence is against a relationship between left ear hearing loss and service. In light of these findings of fact, the Board concludes that service connection for the claimed bilateral or unilateral hearing loss is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Increased Rating—Law and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a disability rating in excess of 0 percent for residuals of a perforated right eardrum. In an April 2000 rating decision, VA granted service connection for a perforated right eardrum and assigned a rating of 0 percent under Diagnostic Code 6211, effective May 30, 1999. The current appeal arises from an increased rating claim received at VA on August 26, 2008. While the rating schedule acknowledges perforated eardrums, and offers a specific diagnostic code for them, the only rating available is 0 percent. See 38 C.F.R. § 4.87, DC 6211. The Board has considered whether any other diagnostic codes would offer a compensable rating; however, despite the fact that service connection is not in effect for right ear hearing loss, the evidence does not establish that the Veteran has hearing loss for VA purposes in the right ear. As noted above, this is the primary basis for the Board’s denial of service connection for right ear hearing loss. In sum, the Board finds that the service-connected right ear perforated eardrum is assigned the highest rating contemplated under the rating schedule and is not manifested by any functional impairment. In light of these findings of fact, the Board concludes that a disability rating higher than 0 percent for the service-connected right ear perforated eardrum is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to TDIU since April 6, 2020 In a July 2020 decision, the Board granted TDIU since April 6, 2020. In the subsequent August 2020 Supplemental Statement of the Case, the AOJ continued to deny the appeal as to that issue noting that the Veteran continued to be employed. The fact of his employment is no longer relevant to the period affected by the Board’s decision. The Board has granted the appeal as to that matter. The Veteran is entitled to implementation of the Board’s decision. This determination does not affect future entitlement based on additional evidentiary development. This matter is REMANDED for the following action: Implement the Board’s July 8, 2020, decision regarding entitlement to TDIU since April 6, 2020. Please note that the Order of that decision states that “Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU), from April 6, 2020, is granted.” JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.