Citation Nr: 21065388 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-28 766A DATE: October 26, 2021 ORDER Prior to March 17, 2017, an initial 10 percent rating for bilateral hearing loss is granted. From March 17, 2017, an initial compensable rating for bilateral hearing loss is denied. Service connection for a right shoulder disability is denied. Service connection for bilateral feet cold injury residuals is denied. FINDINGS OF FACT 1. Prior to March 17, 2017, the Veteran's bilateral hearing acuity was Level III in the right ear and Level IV in the left ear. 2. From March 17, 2017, the Veteran's bilateral hearing acuity was Level II in the right ear and Level I in the left ear. 3. The preponderance of the evidence is against finding that a right shoulder disability began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that cold injury residuals of the bilateral feet, including neuropathy, began during active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. Prior to March 17, 2017, the criteria for a 10 percent rating for bilateral hearing loss are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. From March 17, 2017, the criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for bilateral feet cold injury residuals are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from November 1984 to April 1985 and from July 1986 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision. The Veteran was scheduled for a Board hearing in January 2020, which he postponed. He then failed to appear for the rescheduled hearing in March 2020. Neither he nor his representative have presented good cause for his failure to appear, and therefore the Board will proceed in adjudicating the appeal. During the pendency of the appeal, the Veteran presented evidence of his unemployability. Generally, such evidence warrants consideration of a total disability rating based on individual unemployability (TDIU) as part of the increased rating claim on appeal. However, the Veteran was already awarded a TDIU effective from July 11, 2018. This is consistent with the date that he was last employed, according to his TDIU application form. Because he has been awarded a TDIU for as long as he has been unemployed, the Board will not consider a TDIU as part of the current increased rating claim on appeal. Increased Rating Bilateral hearing loss prior to March 17, 2017 The Veteran is currently assigned a 0 percent rating for his bilateral hearing loss. 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. The Veteran underwent a VA examination in June 2011. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 55 55 60 55 LEFT 60 60 55 70 61 Speech audiometry revealed speech recognition ability of 96 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. Applying these values to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. However, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level III in the right ear and level IV in the left ear. Applying these updated values to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. Therefore, a higher 10 percent rating is warranted during this period. Bilateral hearing loss from March 17, 2017 From March 17, 2017, a compensable rating for bilateral hearing loss is not warranted. The Veteran was afforded a VA examination on that date. Pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 20 25 20 LEFT 15 15 15 25 18 Speech audiometry revealed speech recognition ability of 88 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 II in the right ear and Level I in the left ear. Applying these values to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. During this examination, no exceptional pattern of hearing impairment was shown. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's report that he had to ask people to repeat what they said. 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). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Right shoulder The Board concludes that the preponderance of the evidence is against finding that a right shoulder disability began during active service, or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative for any complaints, treatment, or diagnoses of a right shoulder disability during service. The Veteran's August 1993 separation examination, and subsequent June 1994 periodic service examination, were both normal. He also denied having a painful or "trick" shoulder on the accompanying medical history reports. A November 1993 VA examination, which noted various complaints of joint pain, contains no mention of the right shoulder. In a June 2017 statement, the Veteran reported that his shoulder hurt all the time in service, but that he "could not just go cry to medical" about it. The Board does not find this statement to be credible. First, it contradicts the contemporaneous medical evidence from service, which shows the Veteran denied any shoulder problems. Second, the Veteran was seen for various medical concerns during service, including orthopedic complaints such as a left ankle injury and back pain. This indicates that he was actively reporting musculoskeletal symptoms. The fact that there is no documentation of a right shoulder condition strongly suggests that he was not experiencing any right shoulder symptoms during service. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). While the Veteran believes he has a right shoulder disability related to service, the Board reiterates that the preponderance of the evidence weighs against findings that any right shoulder injury or symptoms occurred during service. Therefore, service connection is not warranted. Bilateral feet cold injury residuals The Board concludes that, while the Veteran has a current diagnosis of bilateral foot neuropathy secondary to cold injury residuals, and evidence shows that the Veteran reported foot pain and swelling during service, the preponderance of the evidence weighs against finding that the Veteran's disability began during service or is otherwise related to an in-service injury, event, or disease. During his August 1993 separation examination, the Veteran reported a history of periodic pain and swelling of the feet. During a November 1993 VA examination, the Veteran referenced left ankle complaints but did not mention any cold injury residuals or neurological symptoms such as tingling or numbness. Instead, the first mention of a cold injury is from May 2012. VA treatment records from that month show the Veteran reported spending the previous night outdoors, and he expressed concern that his feet had frostbite as a result. In a February 2015 statement, the Veteran indicated that his feet were wet and cold most of the time when he was stationed in Germany and Fort Benning. He reported experiencing numbness and tingling in his toe after being in the field. He stated that he was trained to work through it, and that he experiences the same numbness and tingling as he did during service. However, the Board does not find the Veteran's statement to be credible. As before, his service treatment records show numerous complaints of a variety of symptoms, but do not document any numbness, tingling or other cold injury residual. In addition, his separation and post-separation examinations do not reference any such symptoms or otherwise mention frostbite or a cold injury. A March 2017 VA examiner similarly concluded that the Veteran's neuropathy was less likely than not related to service. The basis for that opinion was that, while the Veteran had pain and swelling in the feet in August 1993, there was no mention of frostbite or cold injury. The only indication of a possible frostbite injury was documented in the May 2012 VA treatment records. There is no competent medical evidence linking the Veteran's current neuropathy to service, including a cold injury in service. To the extent that the Veteran has asserted such a link, he has not shown the necessary medical knowledge or training to provide a competent medical opinion in this case. The issue is medically complex, as it requires knowledge of anatomical relationships and pathology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). For these reasons, service connection for cold injury residuals of the bilateral feet is not warranted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.