Citation Nr: 21065296 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-64 922 DATE: October 25, 2021 ORDER Entitlement to service connection for the aggravation of bilateral hearing loss is granted. Entitlement to an initial rating in excess of 10 percent for sinusitis is denied. FINDINGS OF FACT 1. Bilateral hearing loss clearly and unmistakably existed prior to service, but it is not clear and unmistakably that bilateral hearing loss was not aggravated during service beyond the natural progress of the disorder. 2. Sinusitis is productive of three to six non-incapacitating episodes per year of sinusitis characterized by headaches and pain. CONCLUSIONS OF LAW 1. The criteria for service connection for the aggravation of bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for an initial rating in excess of 10 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.97, Diagnostic Code 6513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to February 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that he is entitled to service connection for bilateral hearing loss because the claimed disability is the result of noise exposure in service during small arms training, in the motor pool, and exposure to heavy motor vehicle equipment. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated in service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be established for any disease diagnosed after separation from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection for hearing loss disability may be established where the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. For service audiology evaluations conducted prior to January 1, 1967, VA protocol is to assume the American Standards Association (ASA) was used. For service audiological evaluations conducted between January 1, 1967, and December 31, 1970, VA protocol is to consider the data under both ASA and International Standards Organization-American National Standards Institute (ISO-ANSI), whichever is more beneficial to the Veteran. For service audiology evaluations conducted after December 31, 1970, VA protocol is to presume the ISO-ANSI standard was used. Therefore, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: HERTZ 500 1000 2000 3000 4000 ADD 15 10 10 10 5 Audiometric tests which were recorded using "ASA", or American Standards Association, units have been converted so that the Veteran's pure tone thresholds are shown with the final total after conversion in parentheses. At a January 1964 service entrance audiology evaluation, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 (20) 0 (10) 10 (20) 45 (55) 45 (50) LEFT 5 (20) 5 (15) 5 (15) 5 (15) 40 (45) The service medical records did not indicate a diagnosis of bilateral hearing loss at entrance to service. The Board notes that when no preexisting condition is noted at examination, acceptance, and entrance into service, a Veteran is presumed to have been sound upon entry, and the presumption of soundness arises. The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that a veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In March 2021 the claim was remanded for a medical opinion as to whether or not the claimed disability clearly and unmistakably existed prior to service. The Board finds that the audiometric readings at entrance to service met the criteria to constitute a bilateral hearing loss disability for VA purposes. 38 C.F.R. § 3.385. In a May 2021 VA examination, the examiner opined that the Veteran's bilateral hearing loss clearly and unmistakably existed prior to service. At a December 1965 service separation audiology evaluation, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 (20) 15 (25) 15 (25) X 25 (30) LEFT 15 (30) 15 (25) 15 (25) X 50 (55) A January 1974 private medical treatment record diagnosed the Veteran with "word deafness" based on hearing loss above 2000 Hertz. Pure tone thresholds were: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 10 X 75 LEFT 0 0 20 X 70 There was no indication that a Maryland CNC speech recognition test was provided. At a March 1964 private audiology evaluation, pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 25 70 75 LEFT 5 10 45 75 80 In a May 2021 VA examination, the examiner opined that the claimed disability, which clearly and unmistakably existed prior to service, was not permanently aggravated beyond the natural progression by active service. The examiner noted that the Veteran served in the Army as a clerk typist, which the examiner stated had a low probability of hazardous noise exposure. The examiner also considered the Veteran's reports of service noise exposure due to the motor pool with some tanks and diesel engines, and while qualifying on the M16. The Veteran also reported civilian noise exposure due to performing maintenance work. The spousal statement regarding hearing loss observations following the Veteran's separation from service were also noted in the examination. The rationale for the opinion was that in comparing the enlistment to the separation examination, in either ASA or ISO conversion, there were no significant threshold shifts at any frequency, beyond the normal progression. Regarding hearing loss due to acoustic trauma due to firing small arms, the examiner noted that there was no evidence of acoustic trauma as the indication would be threshold shifts. The examiner opined that it was "less likely as not (less than 50/50 probability) the Veteran's hearing loss was a result of small arms fire in service." The Board finds that bilateral hearing loss clearly and unmistakably preexisted entrance to service. However, the Board finds that there is not clear and unmistakable evidence that the preexisting bilateral hearing loss was not aggravated during service. The VA examiner found that there were no "significant" threshold shifts during service beyond the normal progression. However, that does not mean that there we no threshold shifts. In fact, comparing the entrance and separation examinations, there were threshold shifts indicating decreased hearing at several of the tested frequencies. The examiner did not find it clear and unmistakable that the hearing loss was not aggravated during service. Therefore, clear and unmistakable evidence has not been shown to rebut the presumption of aggravation during service where a disability underwent increase in severity. And the increase is not clearly and unmistakably shown to be the result of the natural progress of the disorder. Accordingly, the Board finds that preexisting bilateral hearing loss was aggravated during service and service connection for the aggravation of bilateral hearing loss during service must be granted. 2. Entitlement to an initial rating in excess of 10 percent for sinusitis The Veteran's sinusitis is rated 10 percent under Diagnostic Code 6513. Diagnostic Code 6513 applies the General Rating Formula for Sinusitis. Under the General Rating Formula, a 10 percent rating requires one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A maximum 50 percent rating requires osteomyelitis following radical surgery or near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6513. In a September 2016 VA examination, the examiner diagnosed chronic sinusitis. No incapacitating episodes or non-incapacitating episodes of sinusitis were reported. The Veteran reported being treated twice for sinus infection in the past 12 months. In a December 2019 statement, the Veteran indicated that he had sinus surgery in the past, but the surgeon is now deceased, and the Veteran was unable to obtain those records. In January 2021, the Veteran submitted a Statement in Support of Claim reporting "at least 4 incapacitating episodes of sinusitis a year" with headache, face pain due to sinus pressure, dizziness, and earache. In a March 2020 VA opinion, following review of the claims file, the examiner found that the Veteran had sporadic sinusitis. No incapacitating episodes or non-incapacitating episodes of sinusitis were reported. The examiner reported that the Veteran had no history of sinus surgery. In a May 2021 VA examination, the Veteran reported that he has been treated for a sinus infection a few times a year with antibiotics and cortical steroids. The Veteran stated that a sinus surgery helped relieve symptoms temporarily, but since that time he had experienced sinus infections a few times every year. The Veteran did not experience non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in the past 12 months. The examiner noticed the sinus surgery, but the time of the surgery and records were unavailable. Under remarks the examiner indicated that the service-connected diagnosis of sinusitis was changed to rhinitis which was known to be associated with chronic sinusitis. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for sinusitis. The Board acknowledges the Veteran's lay reports of symptoms and that he experiences non-incapacitating episodes as a result of the claimed disability. In August 2021, the RO assigned a 10 percent rating based on three to six non-incapacitating episodes per year of sinusitis characterized by headaches and pain. However, even considering the Veteran's reports of symptoms and noted functional loss, the degree of the non-incapacitating episodes does not amount to more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; or three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment. While the Veteran claimed in a December 2019 statement to have four incapacitating episodes per year, the clinical documentation does not corroborate that contention. The Veteran claimed at the September 2016 VA examination to have been treated twice in the previous year. At the May 2021 VA examination, the Veteran stated that he had been treated with antibiotics and steroids a few times a year. However, the evidence does not show prolonged incapacitating episodes with prolonged antibiotic treatment for four to six weeks that occurred three or more times per year. The evidence also does not support a finding of more than six non-incapacitating episodes per year. The Board has considered the evidence of record, but finds that the preponderance of the evidence is against such a finding. Accordingly, the Board finds that the preponderance of the evidence is against the appeal for a rating in excess of 10 percent for sinusitis. Therefore, the claim for a rating higher than 10 percent must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.