Citation Nr: 21065527 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-56 847 DATE: October 26, 2021 ORDER Entitlement to a 30-percent rating for gastroesophageal reflux disease (GERD) is granted, subject to the laws and regulations governing monetary benefits. Entitlement to a compensable rating for left ear hearing loss is denied. The application to reopen a claim of entitlement to service connection for right ear hearing loss is granted. Entitlement to service connection for right ear hearing loss is denied. REMANDED Entitlement to a compensable rating for residuals of nasal fracture (now also claimed as deviated nasal septum) is remanded. FINDINGS OF FACT 1. The Veteran's GERD manifests as persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation with shoulder pain that are productive of considerable impairment of health. 2. The Veteran's hearing impairment is no worse than Level I in the right ear and Level II in the left ear. 3. An October 2004 rating decision denied service connection for bilateral hearing loss, which included right ear hearing loss. The Veteran did not perfect an appeal to the Board nor submit new and material evidence within one year of notification of the decision. 4. Evidence received since the October 2004 rating decision that denied service connection for right ear hearing loss relates to a previously unestablished fact necessary to substantiate the claim. 5. The Veteran does not have a current hearing loss disability of the right ear for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for a 30-percent rating, and not higher, for GERD are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.114, Diagnostic Code 7346. 2. The criteria for entitlement to a compensable rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The October 2004 rating decision that denied service connection for right ear hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 4. Evidence received since the October 2004 rating decision that denied service connection for right ear hearing is new and material, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for a hearing loss disability of the right ear are not met. 38 U.S.C. §§ 1101, 1112, 1113; 1131 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision. In February 2021, the Veteran testified at a Board before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board remanded this matter in May 2021. Increased Rating Disability ratings are determined by applying the criteria of VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a rating in excess of 10 percent for GERD. A rating decision of July 2006 granted service connection for gastroesophageal reflux disease with an evaluation of 10 percent, effective June 22, 2004. In February 2017, the Veteran filed a claim for rating increase. A rating decision of May 2017 continued the 10-percent rating. The Veteran filed a notice of disagreement (NOD) in May 2017 and VA Form 9 in Oct 2017. GERD is not specifically listed in the rating schedule but is evaluated as analogous to hiatal hernia. An unlisted condition may be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. Under Diagnostic Code (DC) 7346, relating to hiatal hernia, the evaluations are: 60 percent for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health; 30 percent for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health; and 10 percent for hiatal hernia with two or more of the symptoms for the 30-percent evaluation of less severity. There are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C. F. R. § 4.14. 38 C.F.R. § 4.113. Ratings under DCs 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.114. In March 2017, the Veteran underwent a VA examination for esophageal conditions. He reported that his condition had worsened. The following signs and symptoms were noted: persistent recurrent epigastric distress, dysphagia, pyrosis (heartburn), reflux, regurgitation, mild nausea, mild vomiting, and pain (substernal, arm, and shoulder), and sleep disturbance caused by esophageal pain. The esophageal pain, mild nausea, and mild vomiting each lasted less than one day and occurred four or more times per year. In August 2021, the Veteran again underwent a VA examination for esophageal conditions. He reported chest discomfort, mid-sternal chest pain, burping, and reflux. Reflux, regurgitation, and substernal pain were noted as signs and symptoms. The examiner indicated, in the Remarks section of the report, that the Veteran was not cooperative in answering questions as to the functional impact of the disability. The report does not state, however, that any examination finding is therefore questionable or invalid. In the examination reports of March 2017 and August 2021, the Veteran was noted to take Omeprazole, and there was no esophageal stricture, spasm of esophagus, or an acquired diverticulum of the esophagus. The August 2021 examiner characterized the Veteran's GERD as mild. It was also noted that the Veteran presented with chest pain symptoms which he attributed to his GERD. In May 2021, the Veteran testified before the Board, in relation to his GERD, that he sometimes cannot swallow, that he has spasms in his esophagus, that his left shoulder hurts with pain from reflux, and that his medication helps considerably. As a layperson, the Veteran is competent to report his experienced symptoms and their frequency. See Layno v. Brown, 6 Vet. App. 465 (1994). Where the effects of medication are not specifically contemplated by the rating criteria, a higher rating may not be denied simply because symptoms are relieved by medication. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012). The medical and lay evidence establishes that the Veteran GERD manifests with symptoms that considerably impair the Veteran's health, namely epigastric distress, dysphagia, pyrosis, reflux, regurgitation, mild nausea, mild vomiting, shoulder pain, and sleep disturbance caused by esophageal pain. The esophageal pain, mild nausea, and mild vomiting occur less than once per day and four or more times per year. The symptoms reported by the Veteran and documented by his physicians are consistent with a 30-percent evaluation under DC 7346 throughout the period under consideration. A preponderance of the evidence is against finding pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health, which would entitle the Veteran to a 60-percent rating. 2. Entitlement to a compensable rating for left ear hearing loss. In February 2017, the Veteran filed a service connection claim for hearing loss. A rating decision of May 2017 granted service connection for left ear hearing loss with an evaluation of 0 percent, effective February 6, 2017. The Veteran filed a NOD as to the assigned rating in May 2017 and VA Form 9 in Oct 2017. VA's Rating Schedule evaluates impairment of auditory acuity pursuant to 38 C.F.R. § 4.85. An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing, and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). When the pure tone thresholds at the four specified frequencies (1000, 2000, 3000, and 4000 hertz) are 55 decibels or more, or when the pure tone thresholds are 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. That numeral will then be elevated to the next highest Roman numeral. 38 C.F.R. § 4.86. The Veteran underwent a VA audiological examination in April 2017. The pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 5 15 10 LEFT 20 15 15 25 40 The speech discrimination score was 94 percent for the right ear and 96 percent for the left ear. The average of the pure tone thresholds (at 1000 Hertz through 4000 Hertz) was 10 decibels for the right ear and 24 decibels for the left ear. Applying these results to Table VI results in Level I for the right ear and Level I for the left ear. These levels of hearing loss equate to a noncompensable rating when applied to Table VII. Because there was no exceptional pattern of hearing loss in the either ear, Table VIa does not apply. The Veteran again underwent a VA audiological examination in August 2021. The pure tone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 25 25 LEFT 20 25 20 30 35 The speech discrimination score was 94 percent for the right ear and 88 percent for the left ear. The average of the pure tone thresholds (at 1000 Hertz through 4000 Hertz) was 23 decibels for the right ear and 28 decibels for the left ear. Applying these results to Table VI results in Level I for the right ear and Level II for the left ear. These levels of hearing loss equate to a noncompensable rating when applied to Table VII. Because there was no exceptional pattern of hearing loss in the either ear, Table VIa does not apply. The Board finds that an increased rating is not warranted for service-connected hearing loss of the left ear at any time during the period under review. The results of audiometric testing do not document audiological impairment which equates to compensable evaluations for left ear at any time during the appeal period. As a layperson, the Veteran is competent to report his symptoms of hearing loss. See Layno v. Brown, 6 Vet. App. 465 (1994). The standard audiological testing is more probative in this case than the Veteran's report of hearing loss symptoms. The impact of hearing loss, i.e., difficulty hearing and understanding speech, is contemplated by the rating criteria. Because the preponderance of the evidence is against finding that the criteria for a compensable rating for left ear hearing loss have been met, the increased-rating claim must be denied. The Veteran testified before the Board that he has physical pain in his left ear that began during his military service. His representative stated at the hearing that the Veteran will determine, following a review of his records, whether to seek service connection for any disability associated with the left-ear pain. Reopening of Claim 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right ear hearing loss. An October 2004 rating decision denied service connection for bilateral hearing loss. Acoustic trauma was conceded based on the Veteran's military occupation of fire protection specialist. The denial was based on the lack of a current hearing loss disability as shown by a VA examination report of September 2004. Following the Veteran's filing of a NOD in October 2005, a statement of the case (SOC) was issued in July 2006. The Veteran did not appeal to the Board. The rating decision thus became final. 8 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In February 2017, the Veteran filed a service connection claim for hearing loss. A rating decision of May 2017, in part, denied service connection for right ear hearing loss. The Veteran filed a NOD in May 2017 and VA Form 9 in Oct 2017. The denial of service connection for bilateral hearing loss in October 2004 was also necessarily a denial of service connection for right ear hearing loss. Generally, a claim that has been denied in a final, unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception provides that VA shall reopen a disallowed claim if new and material evidence is obtained with respect to the claim. 38 U.S.C. § 5108. VA will generally presume the credibility of the evidence in determining whether it is new and material. See Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The threshold for determining whether new and material evidence has been submitted is low. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). In February 2021, the Veteran testified before the Board that his hearing loss had worsening since the most recent VA examination in 2017. The evidence, which is presumed to be credible for the purpose of reopening, is new. It is also material to the unestablished fact of a current disorder of right ear hearing loss. Because new and material evidence has been received, the claim of entitlement to service connection for right ear hearing loss will be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection In general, service connection will be granted for a current disability that resulted from an injury or disease incurred in, or aggravated by, active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires a current disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Entitlement to service connection for right ear hearing loss. Hearing loss will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000 or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 2000, 3000 or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. The Veteran underwent a VA examination for hearing loss in April 2017. The auditory thresholds for the right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 5 15 10 The speech recognition score using the Maryland CNC word list was 94 percent for the right ear. The diagnosis was sensorineural hearing loss in the frequency range of 6000Hz or higher frequencies. The Veteran again underwent a VA examination for hearing loss in August 2021. The auditory thresholds for the right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 25 25 The speech recognition score using the Maryland CNC word list was 94 percent for the right ear. The diagnosis for the right ear was normal hearing. The April 2017 VA examiner determined that the Veteran's hearing loss is at least as likely as not caused by an event in military service. The rationale was that the entrance examination showed normal hearing, and that the discharge examination revealed a significant threshold change that was consistent with the examination's findings and the known military noise exposure/acoustic trauma. The August 2021 VA examiner did not offer a nexus opinion. As a layperson, the Veteran is competent to report his symptoms of hearing loss. See Layno v. Brown, 6 Vet. App. 465 (1994). The standard audiological testing is more probative in this case than the Veteran's report of hearing loss symptoms. No evidence of record meets or approximates VA's definition of a hearing loss disability for the right ear. The Board concludes that the Veteran does not have a current diagnosis of a hearing loss disability of the right ear for VA purposes. 38 C.F.R. § 3.385. A presumption of service connection based on hearing loss as a chronic disease (an organic disease of the nervous system) is not warranted, because the Veteran does not have a current hearing loss disability of the right ear as defined by VA regulation. 38 C.F.R. § 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection presupposes a current disability. 38 C.F.R. §§ 3.102, 3.303; see also Brammer v. Derwinski, 3 Vet. App. 223 (1995). A preponderance of the evidence is against the claim, because a hearing loss disability of the right ear, as defined by 38 C.F.R. § 3.385, was not found upon VA examination. The Board notes that the Veteran is service-connected for left ear hearing loss and for tinnitus. REASONS FOR REMAND 5. Entitlement to a compensable rating for residuals of a nasal fracture. An October 2004 rating decision granted service connection for residuals nasal fracture. A noncompensable evaluation, effective June 22, 2004, was assigned. A rating decision of November 2012 granted service connection for epistaxis (chronic nose bleeds). A noncompensable evaluation, effective April 2011, was assigned. In February 2017, the Veteran filed a claim seeking an increased rating for residuals of a nasal fracture and service connection for conditions secondary to nasal fracture/deviated septum." A rating decision of May 2017 continued a non- compensable rating for "residuals of nasal fracture (now also claimed as deviated septum)." The Veteran filed a NOD in May 2017 and VA Form 9 in Oct 2017. The Veteran testified before the Board in February 2021 that he experiences weekly nosebleeds and that he considers his nosebleeds to be the main residual of his nasal fracture. He also has trouble breathing in both nostrils. He reported that VA performed surgery for a deviated septum in November of 2017 or 2018. The service-connected disability of residuals of nasal fracture has been rated under DC 6502, relating to deviation of nasal septum (traumatic only). Diagnostic Code 6502 provides for a 10-percent rating for a 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side. 38 C.F.R. § 4.97. There are no other percentage ratings under this code. An October 2021 rating decision granted service connection for deviated nasal septum. A noncompensable rating under DC 6502, effective August 25, 2021, was assigned. Service connection was also granted for sinusitis, with assignment of a 30-percent evaluation under DC 6512, effective August 25, 2021. Thus, from August 25, 2021, the service-connected disabilities of (1) residuals of nasal fracture (now also claimed as deviated septum) and (2) deviated nasal septum are both rated under the same diagnostic code, DC 6502. The evaluation of the same disability or its manifestation under various diagnoses is to be avoided. 38 C.F.R. § 4.14; see also Esteban v. Brown,6 Vet. App. 259(1994). In March 2017, the Veteran underwent a VA examination for sinusitis/rhinitis and other conditions of the nose, throat, larynx, and pharynx. Status post-nasal fracture was the only diagnosis, which was noted to be "active." The examination report is inadequate, because the examiner indicated that there were "other pertinent physical findings" but, in the space provided on the form to specify those findings, the examiner noted that there were "no other pertinent physical findings." Furthermore, no finding was made with respect to the percentage obstruction of the nasal passages, if any. In August 2021, the Veteran again underwent a VA examination. Epistasis [sic] and S/P nasal fracture were diagnosed. The Veteran reported difficulty breathing and episodic nosebleeds. The examination report is inadequate for rating purposes, because no finding was made with respect to the percentage obstruction of the nasal passages, if any. The examiner report is also inadequate in failing to identify VA treatment records of October 2017 and November 2017 relating to the Veteran's septoplasty, deviated or crooked nasal septum, deformity or blockage in the nasal septum, and breathing problems. An operative note of November 2017 documents performance of nasal septoplasty, turbinate reduction, and uvulopalatopharyngoplasty. The August 2021 examination report noted that no records of nasal surgeries were found and that a CT scan of 2017 did not report any old fractures of the nostril. The examination report is also incoherent to the extent that the examiner found no sign of a nasal fracture upon examination, yet "nasal fracture" was also listed as a finding related to the diagnosis. Furthermore, while the diagnosis of epistasis may be a typographical error, the Board will remand to seek clarification of the current diagnosis. The Board takes notice that "epistaxis" is a hemorrhage from the nose and is also called nosebleed and nasal hemorrhage. See Dorland's Illustrated Medical Dictionary 635 (32nd ed. 2012). Epistasis is the suppression of the effect of a gene by a nonallelic gene. See Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/epistasis. In September 2021, the Veteran again underwent a VA examination. The only diagnosis was epistaxis. The Veteran reported nose bleeds, occasional migraine headaches, anemia, and labored breathing. No finding was made with respect to the percentage obstruction of the nasal passages, if any. In October 2021, the Veteran again underwent a VA examination for sinusitis/rhinitis and other conditions of the nose, throat, larynx, and pharynx. Sinusitis was diagnosed. It was determined, with respect to deviated nasal septum (traumatic), that neither the left side nor the right side is completely obstructed and there is not at least 50-percent obstruction of the nasal passage on both sides due to traumatic septal deviation. The report indicated that the Veteran denied any continued epistaxis or traumatic deviated septum symptoms, and that traumatic deviated septum and epistaxis were resolved conditions. The examination report is inadequate, because the examiner failed to address the Veteran's report, in his Board testimony and elsewhere in the record, that he has nosebleeds and trouble breathing in both nostrils. In light of these deficiencies in the medical evidence of record, the Board will remand for a new VA examination. 38 C.F.R. §§ 5102A(d), 4.2, 19.9(a)4. The matter is REMANDED for the following action: 1. Undertake appropriate development to associate with the record any outstanding, identified private medical records relating to the remanded issue and any outstanding VA treatment records. All efforts to obtain such records must be documented in the record. 2. Schedule the Veteran for a VA examination with an appropriate clinician in order to determine the current severity of the service- connected disability of residuals of nasal fracture (now also claimed as deviated septum). All indicated tests must be completed. The examiner must fully describe the Veteran's residuals of nasal fracture (now also claimed as deviated septum) and report all signs and symptoms necessary for evaluating the residuals under the rating criteria. To the extent possible and medically appropriate, the examiner must specifically identify the symptoms that are properly associated with the Veteran's service-connected residuals of nasal fracture (now also claimed as deviated septum) and distinguish them from the symptoms of his service-connected sinusitis, epistaxis (chronic nose bleeds), and deviated nasal septum. The examiner must explain the medical basis for ascribing a symptom to a particular disability or disorder. A rationale is required for medical opinions expressed in the report. If the Veteran's medical history indicates that the diagnosis of any relevant symptoms have changed, the examiner must discuss the prior diagnosis or diagnoses of record and offer an opinion as to whether any later finding represents the progression of a prior diagnosis, a correction of an error in the prior diagnosis, or the development of a new and separate disorder. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven D. Najarian, 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.