Citation Nr: 21061996 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 11-25 690 DATE: October 6, 2021 ORDER A higher initial rating for the seventh cranial nerve deficit disability in excess of 20 percent from September 2, 2007 is denied. A higher initial rating for bilateral hearing loss disability in excess of 10 percent from September 2, 2007 is denied. FINDINGS OF FACT 1. For the entire initial rating period from September 2, 2007, the seventh cranial nerve deficit disability manifested in severe incomplete paralysis, without evidence of complete paralysis. 2. For the entire initial rating period from September 2, 2007, audiometric and speech recognition testing has revealed, at worst, Level II hearing acuity in the right ear and Level XI hearing acuity in the left ear. CONCLUSIONS OF LAW 1. For the entire rating period from September 2, 2007, the criteria for a rating in excess of 20 percent for the seventh cranial nerve deficit disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8207. 2. For the entire rating period from September 2, 2007, the criteria for a rating in excess of 10 percent for the bilateral hearing loss disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.85, 4.86, 4.87, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to September 1, 2007. This matter is on appeal from a December 2008 rating decision issued by the Regional Office (RO). The Veteran testified in Philadelphia, Pennsylvania, at a Travel Board hearing in May 2017 before a Veterans Law Judge. The hearing transcript has been associated with the record. These matters were first brought before the Board in October 2017. The Board remanded in order to obtain VA examinations. A supplemental statement of the case was issued in July 2020. A September 2020 letter advised the Veteran that the judge who held the May 2017 hearing is no longer with the Board and of the right to request a new hearing before another judge. The Veteran was advised that he must return the attached hearing selection form within 30 days or the Board would presume he does not want a new hearing. To date the Veteran has not returned the hearing selection form or provided written notice requesting another hearing; therefore, the Board may proceed in deciding the matter on appeal. These matters were brought before the Board again in December 2020. The Board remanded in order to obtain updated VA examinations. A supplemental statement of the case was issued in June 2021. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 1. Rating the Seventh Cranial Nerve Deficit Disability from September 2, 2007 Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran is in receipt of a 20 percent initial disability rating for the seventh cranial nerve deficit disability from September 2, 2007, rated under DC 8207. Under Diagnostic Code 8207, a 10 percent rating is warranted for moderate incomplete paralysis of the seventh cranial nerve, a 20 percent rating is warranted for severe incomplete paralysis of the seventh cranial nerve, and a 30 percent rating is warranted for complete paralysis of the seventh cranial nerve. Evaluation under Diagnostic Code 8207 is dependent upon the relative loss of innervation of the facial muscles. 38 C.F.R. § 4.124a. The Board notes that neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Sellers v. Wilkie, 30 Vet. App. 157 (2018) ("DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms"). It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The weight of the evidence shows that from September 2, 2007 the seventh cranial nerve deficit disability manifested in severe incomplete paralysis, without evidence of complete paralysis. The Veteran submitted to a VA examination in October 2008. The VA examiner explained that the facial nerve was cut during the surgical removal of a tumor, which resulted in facial nerve paralysis and dysfunction. The examination did not reflect severity and duration of symptoms. The Veteran submitted to a VA examination in October 2015. The VA examiner noted moderate numbness in the left mid and lower face with mild difficulty chewing. The VA examiner found that the disability had a mild impact on the muscle strength in the upper and lower portions of the face. A sensory examination indicated that the Veteran experienced decreased sensation in the left upper, mid, and lower face. The VA examiner concluded that the Veteran had moderate incomplete paralysis of the seventh cranial nerve on the left side. The Veteran submitted to a VA examination in December 2017 to assess the cranial nerves. The VA examiner listed the following symptoms: constant moderate pain in the left upper face, mid face, lower face, and side of the mouth and throat; dull moderate pain in the left upper face, mid face, lower face, and side of the mouth and throat; and paresthesias and/or dysesthesias of moderate severity in the left upper face, mid face, lower face, and side of the mouth and throat. The VA examiner also found that the Veteran experienced severe difficulty chewing, mild difficulty swallowing, moderate difficulty speaking, and moderate increased salivation. Muscle strength testing revealed severe cranial nerve VII deficits in the upper and lower face. A sensory examination indicated that the Veteran experienced decreased sensation in the left upper and mid face, and absent sensation in the lower face. The VA examiner concluded that the Veteran had severe incomplete paralysis of the seventh cranial nerve on the left side and that the right side was not affected. The Veteran submitted to a VA examination in May 2021. The VA examiner wrote that the Veteran did not experience constant pain, intermittent pain, or dull pain. The VA examiner listed the following symptoms: paresthesias and/or dysesthesias of moderate severity in the left upper face, mid face, lower face, and side of the mouth and throat as well as numbness of moderate severity in the left upper face, mid face, lower face, and side of the mouth and throat. The VA examiner assessed that due to the numbness the Veteran bites his lips often and has difficulty drinking out of a cup. Muscle strength testing revealed moderate cranial nerve VII deficits in the upper face, while the lower face was found to be normal. The sensory examination produced normal results. The VA examiner concluded that the Veteran had moderate incomplete paralysis of the seventh cranial nerve on the left side and that the right side was not affected. Based on the foregoing, the preponderance of the evidence is against finding that the seventh cranial nerve deficit disability warranted a rating in excess of 20 percent from September 2, 2007 as the disability only manifested in severe incomplete paralysis and not total, complete paralysis. See 38 U.S.C.§ 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Rating the Bilateral Hearing Loss from September 2, 2007 The Veteran is in receipt of a 10 percent disability rating for bilateral hearing loss from September 2, 2007, rated under DC 6100. Ratings for bilateral defective hearing range from noncompensable (0 percent) 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 pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz or Hz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85. Pursuant to VA's rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Table VIA, "Numeric Designation of Hearing Impairment Based Only on Pure Tone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the pure tone threshold average. Table VIA will also be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86, described in the preceding paragraph. 38 C.F.R. § 4.85 (c). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86 (a). Similarly, if the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, 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 be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b). After a review of all the evidence, the Board finds that audiometric and speech recognition testing has revealed, at worst, Level II hearing acuity in the right and Level XI hearing acuity in the left ear from September 2, 2007. As shown below, the puretone threshold results in the left ear are consistently above 55dB, which is characterized as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a). The Board applies this regulation below when evaluating the hearing impairment in both ears. The Veteran submitted to a VA examination in October 2008. According to the VA examiner, puretone threshold testing produced the following results: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 10 dB 25 dB 35 dB 40 dB Left Ear 105+ dB 105+ dB 105+ dB 105+ dB The average decibel loss was 27.5 for the right ear and 105+ for the left ear. Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 98 percent in the right ear and 0 percent in the left ear. In applying these findings to Table VI in 38 C.F.R. § 4.85, and considering the exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86(a), the Board finds that hearing acuity in the right ear is Level I and the hearing acuity is the left ear is Level XI. The Veteran submitted to a private examination in August 2015. According to the private examiner, puretone threshold testing produced the following results: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 dB 25 dB 35 dB 45 dB Left Ear 120+ dB 120+ dB 120+ dB 120+ dB The average decibel loss was 31.25 for the right ear and 120+ for the left ear. The private examiner did not include speech recognition scores using the Maryland CNC Test. In applying these findings to Table VIA in 38 C.F.R. § 4.85, and considering the exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86(a), the Board finds that hearing acuity in the right ear is Level I and the hearing acuity is the left ear is Level XI. The Veteran submitted to a VA examination in August 2016. According to the VA examiner, puretone threshold testing produced the following results: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 dB 35 dB 50 dB 50 dB Left Ear 105+ dB 105+ dB 105+ dB 105+ dB The average decibel loss was 37.5 for the right ear and 105+ for the left ear. Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 96 percent in the right ear and 0 percent in the left ear. In applying these findings to Table VI in 38 C.F.R. § 4.85, and considering the exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86(a), the Board finds that hearing acuity in the right ear is Level I and the hearing acuity is the left ear is Level XI. The Veteran submitted to a VA examination in December 2017. According to the VA examiner, puretone threshold testing produced the following results: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 dB 45 dB 60 dB 55 dB Left Ear 105+ dB 105+ dB 105+ dB 105+ dB The average decibel loss was 43.75 for the right ear and 105+ for the left ear. Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 100 percent in the right ear and 0 percent in the left ear. In applying these findings to Table VI in 38 C.F.R. § 4.85, and considering the exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86(a), the Board finds that hearing acuity in the right ear is Level II and the hearing acuity is the left ear is Level XI. The Veteran submitted to a private examination in January 2018. According to the private examiner, puretone threshold testing produced the following results: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 dB 40 dB 55 dB 55 dB Left Ear 120+ dB 120+ dB 120+ dB 120+ dB The average decibel loss was 42.5 for the right ear and 120+ for the left ear. Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 92 percent in the right ear and 0 percent in the left ear. In applying these findings to Table VI in 38 C.F.R. § 4.85, and considering the exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86(a), the Board finds that hearing acuity in the right ear is Level II and the hearing acuity is the left ear is Level XI. The Veteran submitted to a private examination in March 2019. According to the private examiner, puretone threshold testing produced the following results: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Av CNC Table Right Ear 15 dB 35 dB 55 dB 55 dB 40 88 II Left Ear 120+ dB 120+ dB 120+ dB 120+ dB 120 No test XI The average decibel loss was 40 for the right ear and 120+ for the left ear. Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 88 percent in the right ear and the private examiner did not test the left ear. In applying these findings to Table VI in 38 C.F.R. § 4.85, and considering the exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86(a), the Board finds that hearing acuity in the right ear is Level II and the hearing acuity is the left ear is Level XI. The Veteran submitted to a VA examination in January 2021. According to the VA examiner, puretone threshold testing produced the following results: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 dB 40 dB 50 dB 55 dB Left Ear 105+ dB 105+ dB 105+ dB 105+ dB The average decibel loss was 41.25 for the right ear and 105+ for the left ear. Speech recognition scores using the Maryland CNC Test revealed speech discrimination of 96 percent in the right ear and 0 percent in the left ear. In applying these findings to Table VI in 38 C.F.R. § 4.85, and considering the exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86(a), the Board finds that hearing acuity in the right ear is Level II and the hearing acuity is the left ear is Level XI. The Board notes that the left ear hearing exhibits exceptional patterns of hearing impairment under 4.86(a). As a result, the Board is able to determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral for each ear. In terms of the left ear as there is an average decibel loss of 120+ dB and speech discrimination score of 0 percent in the left ear over the course of the appeal. In applying these numbers for the left ear to table VI in 38 C.F.R. § 4.85, the most favorable hearing acuity outcome for the Veteran is the maximum at XI. In applying the average decibel loss of 120+ dB to table VIA in 38 C.F.R. § 4.85, the most favorable hearing acuity outcome is still XI. Both tables result in the same hearing acuity outcome for the left ear. The hearing acuity scores applied to Table VII in 38 C.F.R. § 4.85 result in a 10 percent rating. In terms of the right ear, at worst, the Veteran had an average decibel loss of 43.75 dB and speech discrimination score of 88 percent over the course of the appeal. In applying the worst speech recognition score of 88 percent for the right ear to table VI in 38 C.F.R. § 4.85 for any of the examination findings, the most favorable hearing acuity outcome for the Veteran for the right ear is Roman Numeral II. (Continued on the next page) The Roman Numeral scores of II in the right ear and XI in the left ear, applied to Table VII in 38 C.F.R. § 4.85, result in a 10 percent rating. As such, the weight of the evidence of record is against a higher rating in excess of 10 percent are not met for the initial rating period on appeal from September 2, 2007, even considering the exceptional pattern of hearing impairment in the left ear under 38 C.F.R. § 4.86(a). For these reasons, the Board must deny the claim. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.