Citation Nr: 21063352 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-24 928A DATE: October 14, 2021 ORDER Service connection for left ear hearing loss is granted. A rating of 50 percent for chronic sinusitis is granted. A rating higher than 10 percent for hyposmia associated with chronic sinusitis is denied. REMANDED Service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. Resolving any reasonable doubt in favor of the Veteran, his left ear hearing loss is related to service. 2. The Veteran's chronic sinusitis has resulted in multiple surgeries and chronic sinus infections with headaches, pain, tenderness, and discharge. 3. The Veteran's hyposmia is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code (DC) 6275. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.385. 2. The criteria for a 50 percent rating for sinusitis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code (DC) 6510. 3. The criteria for a rating higher than 10 percent for hyposmia are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to July 1979. The Veteran testified before the undersigned Veterans Law Judge at a hearing in June 2021; a copy of the transcript is of record. Service connection for left ear hearing loss Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 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. In both a VA examination and private examination in 2013, the Veteran's left ear hearing loss met the threshold for hearing loss for VA purposes. Though the 2013 VA examiner found the Veteran's hearing loss was not related to his active duty service, the 2013 private audiologist did find a link between the Veteran's hearing loss and his active duty service. The Board notes that the VA examiner relied on the Veteran's normal hearing at separation for the conclusion that the current hearing loss was not related to service. However, service connection is not precluded if there is sufficient evidence to demonstrate a relationship between the appellant's service and a current disability which satisfies 38 C.F.R. § 3.385. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The 2013 private examiner noted the Veteran's military occupational specialty (MOS) as that of a security policeman and that he was stationed on an Air Force base. The Board also notes that the Veteran is service connected for tinnitus. The Veteran testified in his 2021 hearing that he did not have any civilian noise exposure. As such, resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's hearing loss is related to his active duty service and that service connection for left ear hearing loss is granted. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Sinusitis The Veteran's sinusitis is assigned a noncompensable (0%) rating pursuant to DC 6510. After review of the record, the Board finds that the Veteran's sinusitis warrants the maximum rating under DC 6510 of 50 percent. DC 6510 mandates a 50 percent rating following radical surgery with chronic osteomyelitis, or near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The record shows that the Veteran has undergone four surgeries for his sinusitis, including a recent one in 2019. See June 2021 hearing testimony. Furthermore, the Veteran's VA records show he often suffered from sinus infections with symptoms of headaches, pain/tenderness, swelling, and discharge which required antibiotics and over the counter medication. See November 2013, December 2014, June 2015, and April 2016 VA medical records. The Veteran and his wife have testified that he suffers from chronic sinus infections four times a year and submitted pharmacy records with prescriptions for his antibiotics. See June 2016 medical receipts, June 2016 lay statement from Veteran's wife, and June 2021 hearing testimony. As such, resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's sinusitis warrants a 50 percent rating as of his September 2012 grant of service connection. Hyposmia The Veteran's hyposmia is currently assigned a 10 percent rating pursuant to DC 6275. Diagnostic Code 6275 provides for a maximum schedular rating of 10 percent for hyposmia. 38 C.F.R. § 4.87. Thus, in this case, there is no legal basis upon which to award a higher rating for hyposmia, as the maximum rating has already been assigned. The Veteran's claim for such a benefit is consequently without legal merit and must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Service connection for right ear hearing loss In his 2013 VA examination and 2013 private examination, though the Veteran did have right ear hearing loss, the severity of the hearing loss did not meet the criteria for hearing loss for VA purposes. See 38 C.F.R. § 3.385. The Veteran testified in his June 2021 hearing that his hearing loss had continued to increase in severity. Considering that the last examinations to evaluate the severity of the Veteran's hearing loss were in 2013, and that the Board has found the Veteran's hearing loss is related to his active duty service, the Board finds that a new examination to determine whether the severity of the Veteran's right ear hearing loss now meets the criteria for hearing loss for VA purposes is warranted. The matter is REMANDED for the following action: Schedule a VA examination to determine the current severity of the Veteran's right ear hearing loss. The results of audiological testing must include, in numeric decibels, the puretone thresholds at 500, 1000, 2000, 3000, and 4000 Hertz and must provide the speech recognition scores using the Maryland CNC test. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.