Citation Nr: 21005169 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-58 003 DATE: January 29, 2021 ORDER Service connection for a traumatic brain injury (TBI) is denied. An initial rating in excess of 10 percent for hearing loss is denied. REMANDED Service connection for headaches.   FINDINGS OF FACT 1. The Veteran does not have a TBI. 2. The Veteran’s hearing loss has been no worse than level V and level III in an ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial rating in excess of 10 percent for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1955 to September 1959. The case is on appeal from a May 2015 rating decision. In April 2019, the Veteran testified at a Board hearing. In July 2019, the Board reopened a claim of service connection for a dental disorder for treatment purposes and remanded that claim and the additional claims for further development. While the case was in remand status, in an August 2020 rating decision, the RO granted service connection for a dental disorder for treatment purposes. As the benefit sought was granted in full, this issue is no longer before the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Service connection for TBI. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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 or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran is seeking service connection for a TBI. The Veteran contends that in 1957, while he was stationed on the U.S.S Bon Homme or the U.S.S. Hornet, he was involved in an accident in which he slipped coming down a ladder and hit his head. See February 2016 NOD; Board Hr’g. Tr. at 2-3. He asserts that this fall caused him to injure his head and lose consciousness, and that since his fall he has experienced headaches. Id. The Board concludes that the Veteran does not have a current diagnosis of a TBI and has not had one at any time during the pendency of the claim or recent to the filing of the claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, the evidence of record includes a February 2020 VA examination report. The psychiatrist who provided the examination determined that the Veteran has not had a TBI or have residuals of a TBI. Moreover, the examiner reported that the Veteran does not have any TBI related cognitive impairment or subjective symptoms of TBI. The psychiatrist made this determination based on a review of the claims file in addition to performing diagnostic tests. Concerning the question of whether the Veteran has a diagnosis of TBI, the Board acknowledges the evidence of record includes a February 2016 statement from the Veteran’s dentist which states that the Veteran reported the incident in which he fell from a ladder, and experienced headaches since that time. However, in this case, the Board has afforded more probative weight to the opinion of the psychiatrist who provided the February 2020 VA examination. The Board finds the opinion persuasive and probative as it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the February 2016 statement from the Veteran’s dentist does not explicitly state that the Veteran has a TBI diagnosis; it states that the Veteran has received treatment for his headaches. The Board finds this is not sufficient evidence to establish a diagnosis of a TBI. In addition, while the Veteran believes he has a current diagnosis of TBI, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the conclusion of the psychiatrist who provided the February 2020 VA examination. As such, the preponderance of the evidence is against the claim, particularly the current disability element. Thus, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for TBI is not warranted. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. An initial rating in excess of 10 percent for hearing loss. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Analysis The Veteran asserts that he is entitled to a higher rating for his service-connected hearing loss. See February 2016 notice of disagreement. He also asserts his hearing loss is progressively worsening. See Board Hr’g. Tr. at 6. The appeal period now before the Board begins on August 28, 2014, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability is assigned a 10 percent rating beginning from that date. The Veteran underwent a VA examination in May 2015. At that time, the Veteran reported difficulty having conversations as words have to be repeated to him and his hearing loss has affected him professionally, as he was a musician for many years. Testing from the May 2015 VA examination by an audiologist revealed the following puretone thresholds, in decibels and Maryland CNC Word List speech recognition scores: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 60 65 65 65 63.75 88% LEFT 50 60 65 65 60.00 94% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. The Board notes that an exceptional pattern of hearing loss is shown for the right ear under 38 C.F.R. § 4.86(a) as the Veteran had 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz for the right ear. The 64 decibel right ear average puretone average threshold warrants a designation of Level V under Table VIA. As the designation under Table VIA for the right ear is more favorable to the Veteran than designation found under Table VI, Table VIA will be applied. Under Table VII, numeric designation of V for the right ear and II for the left ear, when applied, show a rating of 10 percent. The Veteran underwent an additional VA examination in February 2020 pursuant to the Board’s July 2019 remand as he contended his hearing loss worsened since the May 2015 VA examination. With regard to the functional impact of his hearing loss, the Veteran reported that he can no longer play in a band because he cannot hear all of the instruments. He also stated that he misunderstands what people say and has to turn the volume up when he watches television. The February 2020 VA examination revealed the following puretone thresholds, in decibels and Maryland CNC Word List speech recognition scores: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 60 60 70 57.50 88% LEFT 45 55 65 75 60.00 72% Applying the results to Table VI, the findings yield a numeric designation of Level III for the right ear and Level V for the left ear. Entering the resulting numeric designation of Level III for the right ear and Level V for left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The evidence of record also includes VA treatment records show regular treatment for hearing loss, including the use hearing aids. These records do not include the results of any audiometric testing. Although the Veteran contends that his hearing loss should be rated at a in excess of 10 percent, the applicable mechanical hearing tests of record show that his hearing loss was correctly evaluated as 10 percent disabling during the appellate period. The Veteran’s hearing acuity appeared to improve in the right ear and worsen in the left ear through the appeal period, but the rating remains the same. If he believes his hearing impairment worsens in the future, he should file a Supplemental Claim at that time. The Board acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s complaints regarding his difficulty hearing. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Moreover, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim. As such, the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, a higher initial rating for hearing loss is not warranted. Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND Service connection for headaches. The Veteran is seeking service connection for headaches. He contends that while he was stationed on the U.S.S Bon Homme or the U.S.S. Hornet, he was involved in an accident in which he slipped coming down a ladder and hit his head. See February 2016 NOD; Board Hr’g. Tr. at 2-3. He asserts that this fall caused him to injure his head and lose consciousness, and that since his fall he has experienced headaches. Id. Pursuant to the Board’s July 2019 remand, the Veteran underwent a VA examination in February 2020. The examiner diagnosed the Veteran with tension headaches. The examiner determined that it is less likely than not that Veteran’s tension headaches were incurred in or caused by the claimed in-service event. She explained that the only instance of a headache condition in the Veteran’s VA treatment records was noted in June 2018, and the Veteran’s separation examination was normal. She additionally noted that any indication of the incident is absent from the Veteran’s service treatment records. The evidence of record also includes a February 2016 statement from the Veteran’s dentist stating the Veteran described the in-service incident in which he fell, he treated the Veteran for headaches for many years, and the Veteran has a diagnosis of temporal mandibular joint disorder. The Board’s July 2019 remand directed the examiner to consider the February 2016 statement from the Veteran’s dentist. However, it appears that the examiner did not do so as she did not account for the reports of headache treatment aside from that mentioned in the Veteran’s VA treatment records as noted in the February 2016 statement. Additionally, the examiner did not address the Veteran’s temporal mandibular joint disorder. As headaches can be a symptom of this condition, an etiology opinion is also warranted for this condition. Thus, as there has not been substantial compliance with the Board’s previous remand directives regarding this issue, a remand is warranted for further development and consideration accordingly. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). In addition, at the time of a May 2015 VA examination pertaining to the Veteran’s hearing loss, he asserted that his headaches are caused by his hearing loss and tinnitus. The examiner who provided the February 2020 examination did not provide an opinion regarding this theory of entitlement. Accordingly, a new VA examination and opinion is warranted on remand. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, record review, etc., if an in-person examination is not feasible) by a qualified medical professional for an opinion to determine the nature and etiology of the Veteran’s headaches. The entire claims file should be reviewed by the examiner. First, the examiner should identify the Veteran’s headache condition, to include whether the Veteran has headaches as a symptom of temporal mandibular joint disorder. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any condition had its onset during service, or is otherwise causally related to service, to include the Veteran’s reports of falling from a ladder. The examiner should consider the February 2016 statement from the Veteran’s dentist. If not directly related to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any headache condition is caused or aggravated by his service-connected hearing loss and/or tinnitus. “Aggravation” is an increase in severity beyond the natural progress of the disease. The examiner should provide rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.