Citation Nr: 21005185 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 16-06 138 DATE: January 29, 2021 ORDER Entitlement to a compensable disability rating for bilateral hearing loss is denied. Prior to November 3, 2020, entitlement to a 10 percent disability rating for status post mastoidectomy for left ear cholesteatoma is granted, subject to the laws and regulations governing the payment of monetary benefits. Since November 3, 2020, entitlement to a disability rating in excess of 10 percent for status post mastoidectomy for left ear cholesteatoma is denied. REMANDED Entitlement to a compensable disability rating for status post right lower lobectomy for removal of carcinoid tumor is remanded. FINDINGS OF FACT 1. For the entire appeal period, the Veteran had no worse than Level I hearing in the right ear, and he had no worse than Level II hearing in the left ear. 2. The Veteran’s cholesteatoma results in a buildup of dead skin in his left ear that requires regularly scheduled cleaning by a medical professional. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. Prior to November 3, 2020, the criteria for a disability rating of 10 percent, but no higher, for status post mastoidectomy for left ear cholesteatoma have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.87, Diagnostic Code (DC) 6200. 3. Since November 3, 2020, the criteria for a disability rating in excess of 10 percent for status post mastoidectomy for left ear cholesteatoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.87, Diagnostic Code (DC) 6200. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1985 to November 1988. This matter was previously before the Board in May 2019, at which time the above issues were remanded for additional evidentiary development. There has been substantial compliance with the remand in connection with the claims being decided and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). The remaining issue will be remanded for further development. Increased Ratings Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable disability rating for bilateral hearing loss The Veteran contends that an increased rating is warranted for his bilateral hearing loss, as he experiences severe symptoms of hearing loss. As will be discussed in more detail below, the Board concludes that the overall symptomatology and level of impairment does not more closely approximate those indicative of a compensable disability rating, and a higher evaluation is not warranted. 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 pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 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 pure tone 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 pure tone 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). Both the Veteran’s increased rating claim for left ear hearing loss and service connection claim for right ear hearing loss were received on November 30, 2012. In an August 2017 rating decision, service connection was granted for right ear hearing loss effective the date of his claim. The rating decision then continued a noncompensable evaluation for bilateral hearing loss. A January 2014 private treatment record shows the Veteran underwent audiology testing. However, the record does not provide any speech discrimination findings. Therefore, it is not adequate for rating purposes. 38 C.F.R. § 4.85 (a). A March 2017 VA audiology assessment noted the Veteran’s complaints of hearing loss in both ears for many years. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 25 90 LEFT 35 30 45 55 80 His puretone average was 36 for the right ear and 53 for his left ear. Speech audiometry revealed speech recognition ability of 96 percent in both the right and left ears. The results do not show an exceptional pattern of hearing impairment in either ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. The Board acknowledges that, although it is not clear whether the Maryland CNC word list was used in the March 2017 audiological evaluation, even assuming it was, this would still result in no more than a numeric designation of Level I for each ear, resulting in a noncompensable rating. In June 2017, the Veteran underwent a VA examination to evaluate the severity of his hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 25 35 90 LEFT 70 50 60 65 85 His puretone average was 45 for the right ear and 65 for his left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The results do not show an exceptional pattern of hearing impairment in either ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear, which equates to a zero percent disability rating under DC 6100. An October 2020 VA examination reveals that the Veteran reported having trouble hearing his friends when playing golf, stating that he could not hear them when not looking at them. He also stated that his wife tells him that he turns up the television volume too high and does not hear her when she is speaking to him. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 35 50 90 LEFT 55 70 50 70 80 His puretone average was 54 for the right ear and 68 for his left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in either ear. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s reports of experiencing difficulty hearing people in conversations. 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). 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 of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an increased rating for status post mastoidectomy for left ear cholesteatoma The Veteran seeks a higher evaluation for his disability. For the reasons that follow, the Board finds that higher disability ratings are not warranted. The Veteran’s service-connected status post mastoidectomy for left ear cholesteatoma has been assigned pursuant to 38 C.F.R. § 4.87, DC 6200, pertaining to chronic suppurative cholesteatoma. Under DC 6200, a 10 percent evaluation is warranted during suppuration, or with aural polyps. A note to Diagnostic Code 6200 instructs raters to evaluate hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, separately. See 38 C.F.R. § 4.87. The Veteran has been service-connected for both bilateral hearing loss and tinnitus, effective November 2012. Turning to the relevant medical records, the Veteran was afforded VA examinations in June 2017 and November 2020. In the June 2017 examination, the Veteran was diagnosed with cholesteatoma but there was no evidence of active suppuration or aural polyps. The examiner found that the Veteran’s disability resulted in bone loss of the skull and required the Veteran to undergo annual left ear cleaning. In the November 2020 examination, the examiner noted that the Veteran had to have his left ear cleaned out yearly due to the build up of dead skin that caused itching. He reported that the condition has worsened and required cleaning twice a year. The examination report showed no evidence of active suppuration or aural polyps. However, the examiner did list the Veteran’s hearing loss, itching of external/internal ear canal, tissue and wax buildup as residuals of his disability. Affording him the benefit of the doubt, the Board finds that the Veteran is entitled to a 10 percent disability rating throughout the period on appeal because the medical evidence of record establishes that he experiences regular wax and tissue buildup of his left ear that is the result of his service-connected disability. REASONS FOR REMAND Entitlement to a compensable disability rating for status post right lower lobe lobectomy for removal of carcinoid tumor is remanded. In May 2019, the Board remanded the above issue to afford the Veteran a new VA examination that clarified the present level of functional impairment due to his service-connected disability. The remand instructions also asked the examiner to address whether any other diagnosed pulmonary disabilities were etiologically related to the Veteran’s service-connected disability. Subsequently, the Veteran underwent VA examinations in November2019 and November 2020. The most recent examination report notes the presence of additional pulmonary diagnoses not addressed by the VA examiner in the November 2019 examination. The November 2020 VA examination report also provides inconsistent findings compared to the November 2019 VA examination as to the present functional impairment attributable to the service-connected disability on appeal. As such, remand is needed for a new VA examination, preferably with a pulmonologist, to clarify discrepancies in the prior two VA examination reports. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician – preferably a VA pulmonologist – to determine the current severity of his service-connected lung disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s lung disability alone and discuss the effect of it on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding symptoms or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the Veteran has multiple pulmonary disabilities the examiner must: (a.) Indicate if any of these disabilities are etiologically related to the Veteran’s service-connected lung disability; and (b.) Indicate if he or she is able to distinguish between the symptoms of each pulmonary disability. The examiner must address perform pulmonary function testing. In addition, the examiner should indicate which measurement most accurately reflects the Veteran’s pulmonary function and include a rationale for this conclusion. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.