Citation Nr: 21070684 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-24 852 DATE: November 24, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to a compensable rating for rhinitis is denied. Entitlement to service connection for a deviated septum has been withdrawn. REMANDED Entitlement to a compensable rating for left ear hearing loss is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a right thumb condition is remanded. Entitlement to service connection for a cervical spine condition is remanded. FINDINGS OF FACT 1. The Veteran's right ear sensorineural hearing loss had its onset in service. 2. During the period of appeal, the Veteran's rhinitis has not been manifested by 50 percent or greater obstruction of nasal passages, complete obstruction on one side, or polyps. 3. On October 19, 2020, prior to the promulgation of a decision in the appeal, the Veteran testified at a Board hearing that a withdrawal of his appeal of the issues of entitlement to service connection for a deviated septum was requested. CONCLUSIONS OF LAW 1. The criteria to establish service connection for right ear hearing loss are met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385, Diagnostic Code 6100 (2021). 2. The criteria for entitlement to a compensable rating for rhinitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6522 (2021). 3. The criteria for withdrawal of the issue of entitlement to service connection for a deviated septum are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1984 to January 1986, October 1987 to January 1988, October 1990 to May 1991, October 2003 to July 2004 with additional periods in the Air National Guard. This May 2018 appeal comes before the Board of Veterans' Appeals (Board) from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Huntingtin, West Virginia which granted service connection for left ear hearing loss and rhinitis with a noncompensable rating, and denied service connection for right ear hearing loss, a bilateral knee condition, a right thumb condition, a cervical spine condition, and a deviated septum. The Veteran requested and was afforded an October 2020 Board hearing. 1. Entitlement to service connection for right ear hearing loss 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 also known as a "nexus" between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For chronic diseases manifestation during service or within 1-year post-service or a showing of continuity of symptomatology may serve to satisfy the nexus element. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran contends that his right ear hearing loss is due to noise exposure from jet engines while working as a pilot in the service. See October 2020 Hearing Transcript. The Veteran is currently service-connected for left ear hearing loss. The Board finds that the Veteran has a current disability of right ear hearing loss. During the October 2019 VA examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 35 40 40 LEFT 15 25 40 45 40 The speech recognition score using the Maryland CNC Test revealed speech recognition ability of 82 percent in the right ear and of 80 in the left ear. For VA purposes, impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385. The October 2019 VA examination report reveals puretone thresholds of 40 decibels in the right ear at 3000-4000Hz with a speech recognition score of 82 percent. The Board finds the evidence establishes a current disability of right ear hearing loss. See 38 C.F.R. § 3.385. The October 2019 VA hearing examination report also indicates the hearing loss is sensorineural in nature. VA considers sensorineural hearing loss an "other organic diseases of the nervous system" included among chronic diseases. 38 C.F.R. § 3.309(a). Such chronic diseases may be service connected on a presumptive basis if shown as "chronic" during service, manifested to a compensable degree in a specified period after service, or productive of continuous symptomatology since service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 38 C.F.R. § 3.303(b), 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. The Board finds that the Veteran's right ear hearing loss was "chronic" in service. The Veteran testified that while in service he was a pilot for 32 years and consistently exposed to jet engine noise. See October 2020 Hearing Testimony. The Veteran's service treatment records (STRs) and DD-214 support his contentions regarding his noise exposure due to his military occupation. See October 2015 STRs, DD-214. The Veteran had number of audiograms while in service. During his September 1987 physical examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 5 5 LEFT 5 5 10 10 15 The speech recognition score using the Maryland CNC Test were not provided. During his February 2015 physical examination, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 30 30 35 LEFT 10 15 35 25 35 The speech recognition score using the Maryland CNC Test were not provided. During a January 2016 VA examination, the examiner opined that the Veteran had bilateral sensorineural hearing loss and that it was at least as likely as not caused by, or the result, of his military service. In support, the examiner stated that the Veteran's hearing was within normal limits at the time of his entrance and his discharge examination indicated a significant threshold shift. Id. During an October 2019 VA examination, the Veteran reported bilateral hearing loss and tinnitus due to his military service. As noted above, the October 2019 audiogram indicates the Veteran has current bilateral sensorineural hearing loss. The examiner opined the Veteran's bilateral hearing loss was at least as likely as not due to his military service. Id. Resolving reasonable doubt in the Veteran's favor, the Board finds that the symptoms associated with right ear sensorineural hearing loss is related to his in-service noise exposure. The Veteran's claim was initially denied because he did not meet the VA definition for sensorineural hearing loss in his right ear; however, his later VA audiograms demonstrate that he does have a disability. There are multiple audiograms in the Veteran's STRs indicating a bilateral threshold shift in hearing, evidence that supports the disability began to manifest during service. Finally, both the January 2016 and October 2019 VA examiners provided a positive nexus opinion. Therefore, the Board finds that, affording the Veteran the benefit of the doubt, his right ear hearing loss is due his military service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for right ear hearing loss is granted. 2. Entitlement to a compensable rating for rhinitis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the entire recorded history, and each disability must be considered from the viewpoint of the Veteran working or seeking wok. 38 C.F.R. § 4.2. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims, staged ratings must be considered for the entire period on appeal. A staged rating is appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings under the applicable diagnostic code(s). Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), Fenderson v. West, 12 Vet. App. 119 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. A Veteran may have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's service-connected chronic allergic rhinitis has been evaluated pursuant to 38 C.F.R. § 4.97, Diagnostic Code (DC) 6522 throughout the appeal period. Under DC 6522, a 10 percent rating is assigned for a 50-percent obstruction of the nasal passage on both sides, or complete obstruction on one side. A 30 percent rating is assigned with evidence of polyps. 38 C.F.R. § 4.97. In an April 2014 letter, the Veteran's private physician, Dr. T.S. (T.S., M.D.) indicated the Veteran was diagnosed with both allergic rhinitis and vasomotor rhinitis, but that both conditions were well controlled with medication. See April 2016 Private Medical Treatment Records. Further, Dr. T.S. opined that the condition would likely remain controlled under almost any condition. Id. During a January 2016 VA examination, the Veteran reported chronic rhinitis during service caused by frequent flying. The examiner noted the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on the left or right side and there was no evidence of nasal polyps. The examiner opined the Veteran's chronic allergic rhinitis was due to his service. Id. During a January 2018 VA examination, the examiner confirmed diagnoses of chronic sinusitis, vasomotor rhinitis, and a deviated septum. The examiner noted the Veteran did not have greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on the left or right side and there was no evidence of nasal polyps. The examiner opined the Veteran's rhinitis did not cause any functional impact. Id. The Board finds that during the period of appeal the Veteran's chronic allergic rhinitis did not manifest with symptoms of a 50 percent obstruction of the nasal passage on both sides, complete obstruction on the left or right side, or nasal polyps. Therefore, the Board concludes that a compensable rating for service-connected allergic rhinitis is not warranted. 38 C.F.R. § 4.97. For the foregoing reasons, the preponderance of the evidence is against the claim for a compensable rating for chronic allergic rhinitis. The benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to service connection for a deviated septum The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran withdrew his claim for entitlement to service connection for a deviated septum during his October 2020 hearing. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. REASONS FOR REMAND 1. Entitlement to a compensable rating for left ear hearing loss is remanded. During the Veteran's October 2020 hearing, he testified that his bilateral hearing loss has increased in severity since he was last examined by VA in October 2019. Therefore, the Board finds the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his bilateral hearing loss. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for a left knee condition is remanded. 3. Entitlement to service connection for a right knee condition is remanded. 4. Entitlement to service connection for a right thumb condition is remanded. 5. Entitlement to service connection for a cervical spine condition is remanded. The Veteran contends that his bilateral knee condition, cervical spine condition and right thumb condition are due to his military service. A June 2015 line of duty determination found that the Veteran's medical conditions, including his cervical pain, right thumb pain, and bilateral knee pain, all occurred and were further exacerbated while in the line of duty. See October 2015 STRs. Further, the investigator stated there was no misconduct on the part of the Veteran. Id. The June 2015 line of duty determination is binding on VA. 38 C.F.R. § 3.1(m). The Veteran's STRs indicate that he was treated for a left knee condition including pain and burning, although there was no swelling or tenderness. See October 2015 STRs. The Veteran testified that his knees are extremely painful at times and feel like they are about to pop or give out. See October 2020 Hearing Transcript. He stated that he was not currently treating, but that he had in the past. Id. The Veteran testified that while flying he needed to wear a heavy helmet, googles, battery pack and oxygen hose that he believes put additional strain on his cervical spine. See October 2020 Hearing Transcript. A November 2015 x-ray noted degenerative changes in his cervical spine. See January 2016 VA Medical Records. The Veteran also testified that the repetitive use of his right thumb while operating the flight controls resulted in constant pain, stiffness, and limited movement of the joint. See October 2020 Hearing Transcript. The Veteran is already service-connected for a left thumb condition based on the same contentions. A September 2018 x-ray of his hands indicated bilateral degenerative disease involving the triscaphe joint. See September 2018 Private Medical Treatment Records. The Veteran has not been afforded a VA examination to determine the nature and etiology of his bilateral knee condition, cervical spine condition or right thumb condition. The record supports that the Veteran has a current bilateral knee, right thumb, and cervical spine condition. The June 2015 line of duty determination indicates the Veteran's pain in his bilateral knees, right thumb and neck are due to service, however there is no evidence of a nexus currently in the record. The Board finds there is an indication that the Veteran's disabilities may be related to service, but there is insufficient competent evidence in the file to decide the claim. Therefore, a VA examination is warranted to determine the etiology of the Veteran's bilateral knee, cervical spine, and right thumb condition. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with an appropriate medical professional to determine the current severity of his bilateral hearing loss. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be completed. The claims file should be made available for review, and the examination report should reflect that such review occurred. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of the Veteran's bilateral knee condition. The claims file must be made available for review, and the examination report should reflect that such review occurred. After reviewing the claims file the examiner must: a. Provide an opinion whether the Veteran's bilateral knee condition is at least as likely as not (50 percent or more) proximately due to, or the result of, his service. The examiner must discuss the Veteran's statements that his knee condition is due to compensation for a foot injury while completing the require physical training. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. 3. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of the Veteran's right thumb condition. The claims file must be made available for review, and the examination report should reflect that such review occurred. After reviewing the claims file the examiner must: a. Provide an opinion whether the Veteran's right thumb condition is at least as likely as not (50 percent or more) proximately due to, or the result of, his service. The examiner must discuss the Veteran's contentions that the repetitive use of his thumb to operate the flight controls resulted in his current condition. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. 4. Schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of the Veteran's cervical spine condition. The claims file must be made available for review, and the examination report should reflect that such review occurred. After reviewing the claims file the examiner must: a. Provide an opinion whether the Veteran's right knee condition is at least as likely as not (50 percent or more) proximately due to, or the result of, his service. The examiner must discuss the Veteran's contentions that the weight of his helmet, googles, and battery pack caused additional strain on his neck resulting in his current condition. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (Continued on the next page) A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.