Citation Nr: 21071212 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-37 136 DATE: November 30, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to service connection for vertigo, claimed as dizziness or dizzy spells, is denied. FINDINGS OF FACT 1. Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level III in the left ear. 2. The weight of the most probative evidence of record weighs against a finding that the Veteran's vertigo, claimed as dizziness or dizzy spells, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss have not been 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. The criteria for service connection for vertigo claimed as dizziness or dizzy spells, 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 has active service from March 1970 to December 1971. He also has various periods of reserve service and active duty for training. This case is before the Board of Veterans' Appeals (Board) from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, May 2018, and February 2019, the Board remanded these matters to the RO for additional development. Finding there has been substantial compliance with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. 1. Compensable rating for bilateral hearing loss. The Veteran has been assigned a noncompensable rating for service-connected bilateral hearing loss. He contends that his hearing loss is worse than rated (07/17/2012 VA 21-4138 Statement In Support of Claim). For the purposes of applying laws administered by VA, the thresholds for normal hearing are between 0 and 20 decibels, and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz 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. 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. Further, when the average pure tone threshold is 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran has been afforded a number of VA examinations to assess his hearing loss. A February 2014 private audiological examination is also of record (03/25/2014 Medical Treatment Record - Non-Government Facility). However, the Board cannot determine whether the private examination meets all of the requirements set forth at 38 C.F.R. § 4.85(a). Notably, it is not clear that the examination was conducted by a state licensed audiologist or that it included a controlled speech discrimination test, utilizing the Maryland CNC word list. As such, the Board has not assigned the February 2014 examination probative value in favor of or against the Veteran's hearing loss claim. During his April 2012 VA audiological evaluation (04/17/2012 VA Examination), pure tone thresholds, in decibels, were recorded as: April 17, 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 20 45 65 37.5 96 LEFT 25 25 50 75 43.75 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. During his July 19, 2017 VA audiological evaluation, pure tone thresholds, in decibels, could not be recorded. The examiner had to be reinstructed several times, but results were inconsistent and unreliable. The Veteran was able to respond to speech at a level well below the level at which he claimed to hear the tones. Other testing revealed that the hearing is better than reported. The Veteran's speech recognition during the July 2017 exam was evaluated as 84 percent for the right ear and 80 percent for the left ear (07/26/2017 C&P Exam, pg. 4). During his September 2018 VA audiological evaluation (09/05/2018 C&P Exam, pg. 3), pure tone thresholds, in decibels, were recorded as: September 5, 2018 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 75 80 60 86 LEFT 35 35 75 80 56.25 86 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Finally, during his January 2021 VA audiological evaluation (01/11/2021 C&P Exam, pgs. 3 and 4), pure tone thresholds, in decibels, were recorded as: January 7, 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 80 80 61.25 88 LEFT 40 50 90 90 67.5 86 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designations to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board has considered the Veteran's complaint about the practitioner performing the VA examination (12/16/2020 VA 21-0820 Report of General Information). The Veteran indicated he did not like the way the practitioner did her work and would prefer that someone else conduct the examination. The Board does not find the complaint to be grounded in sufficient or specific facts needed to question the competence of any VA examiner. The Board has reviewed the examinations and does not find any of the write ups suggestive of bias or incompetence of any examiner. Accordingly, the Board does not assign the Veteran's complaints any merit warranting remand for an additional examination or otherwise impacting the probative value of any VA examination. The Board also expressly acknowledges consideration of the lay evidence of record in adjudicating this claim. Specifically, the Board has considered the complaints that the Veteran has difficulty hearing in general and difficulty understanding conversations in noisy places. 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). In sum, 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). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). In this regard, the Board contemplated whether consideration of extraschedular rating is warranted. Because the Veteran's symptoms and assertions related to those contemplated by the rating criteria, extraschedular consideration is not appropriate in this case. As the preponderance of the most probative evidence of record weighs against the claim of entitlement to a compensable rating for hearing loss, the Veteran's claim is denied. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service connection for vertigo, claimed as dizzy spells, to include as secondary to service-connected hearing loss. The Veteran has claimed entitlement to service connection for dizzy spells (05/06/2011 VA 21-4138 Statement In Support of Claim). 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The evidence of record is in conflict with regard to a current diagnosis of dizziness. Dizziness has appeared on the Veteran's problem list, and post service treatment records include documentation of his history of benign paroxysmal positional vertigo. Contrary to the foregoing, the June 2020 examiner did not find a current diagnosis, and a more recent problem list reflects that his dizziness was resolved as of March 2016 (07/26/2021 CAPRI; pg. 2). As the evidence is at least in equipoise as to whether there is a current diagnosis for vertigo or dizziness, the Board resolves doubt in favor of the Veteran and finds the first element for service connection is met. In so finding, it is noted that the concept of "current disability" is satisfied as long as a disability is shown during some portion of the appeal period. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) Finding that the Veteran has a current diagnosis of vertigo or dizziness, the question for the Board is whether the disability began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds the preponderance of the evidence is against finding that his vertigo or described dizziness began during active service, or is otherwise related to an in-service injury, event, or disease. A review of the service treatment record reveals that in November 1971, he was physical qualified for release from inactive training and clinically evaluated as normal, to include his ears. No complaints of vertigo were noted (03/20/2014 STR Medical, pg. 3). Throughout the Veteran's reserve career, he consistently reported no change in his health, and made no complaints or reports of vertigo or dizziness. During physical examinations in February 1980, November 1983, June 1984, January 1985, August 1986, July 1987, June 1989, November 1993, and March 1998, the Veteran consistently described himself as in good health, specifically denying dizziness or fainting spells. He was clinically evaluated as normal (03/20/2014 STR - Reserve STR; 03/20/2014 STR - Medical). While not entirely dispositive, the Veteran's service treatment history does not suggest inservice onset of vertigo, and weighs against his claim. Post-service treatment records suggest the Veteran did not begin to complain of vertigo until after his active service. In December 2012 treatment notes reveal the Veteran's complaint of worsening vertigo. He reported that he had it for years and that it has made it unsafe to remain a machine operator (12/11/2013 CAPRI, pgs. 79 and 84). In January 2014, a treatment note revealed the Veteran's complaint of dizziness for more than one year (02/25/2015 CAPRI, pg. 145). The Veteran did not suggest in-service onset during either of these visits, also weighing against the Veteran's claim. During a February 2014 private hearing examination, the Veteran described his vertigo as having begun 15 years prior, that is approximately 1999. His vertigo was assessed as likely to be benign paroxysmal positional vertigo (BPPV) (03/25/2014, Medical Treatment Record - Non-Government Facility pgs. 2 and 6). BPPV was also noted in March 2014 private treatment records (12/01/2014 Medical Treatment Record - Non-Government Facility, pg. 4). The Board finds the foregoing medical evidence to be highly probative, suggesting that the Veteran's dizziness did not begin until years after service, weighing against his claim. The Veteran has been afforded a number of VA examinations for ear conditions and a positive nexus opinion was issued in October 2019. The October 2019 VA examiner confirmed the Veteran's diagnosis with peripheral vestibular disorder. After considering the Veteran's lay statements of onset of dizziness at the end of his service in 1970, the examiner opined that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness (10/07/2019 C&P Exam, pg. 2). The examiner explained the Veteran's lay testament is consistent with the conditions of service, is supported by examination findings, and there is no evidence to the contrary. The Board does not find this opinion to be probative, as it is not based on accurate facts about the Veteran's medical history. The examiner did not address the decades of affirmative denial of dizziness by the Veteran during service. As such, the October 2019 examination is not assigned probative weight. In direct opposition to the foregoing positive nexus opinion, a second October 2019 examination was obtained for ear conditions. The examiner opined the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained the Veteran's symptoms are subjective only and found the objective exam to be normal. The examiner found no objective evidence of a chronic condition, noting clinical diagnostic procedures of Romberg, Dix Hallpike, and Limb coordination tests were normal. The examiner, finding the physical exam was normal, indicated no diagnosis was warranted (10/11/2019 C&P Exam, pg. 9). The examiner explained the objective findings during the exam in 2017 do not correlate with the October 2019 physical examination. The examiner also considered the Veteran's reported head injury after falling off his bunk in 1960. The examiner did not find the Veteran's report to be associated with the dizzy spells. A June 2020 addendum opinion was obtained to clarify any perceived discrepancy as to the absence of a diagnosis. The examiner reiterated that the documentation for the ear examination, including vestibular and infectious, show a normal physical examination and that no diagnosis was warranted. The examiner considered the Veteran's history of BPPV with a consult and treatment with meclizine as needed. The examiner explained that this was last evaluated in 2016. No evidence of ongoing treatment or continued care since 2016 therefore no diagnosis rendered on day of DBQ completion (06/16/2020 C&P Exam). Taken together, the Board finds the VA examiners have thoroughly considered the Veteran's assertions, service, and medical history, and provided detailed assessments and opinions, grounded in medical reasoning. As such, the Board finds the second October 2019 opinion and June 2020 addendum highly probative, weighing against the Veteran's claim for direct service connection. The Board has also considered whether the Veteran's vertigo or dizziness is associated with his service-connected hearing loss. The October 2019 examiner considered the Veteran's medical history and complaints, and opined the dizziness to be less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected condition of hearing loss. The Board also notes that examinations for hearing loss did not associate vertigo with his hearing loss. As such, the Board finds the medical evidence of record weighs against a finding that the Veteran's dizziness is proximately due to or caused by his service- connected hearing loss. The Board has also considered the Veteran's lay assertions of vertigo. While the Veteran has expressed a belief that his dizziness is related to his service, the Board finds his current statements made in pursuit of a claim for compensation to be less probative than his denials of experiencing vertigo during physicals for his military service. Additionally, the record does not suggest the Veteran has specialized knowledge or training to render accurate diagnoses or opine as to nexus. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board does not assign the Veteran's lay statements probative weight in favor of his claim. The Board has considered whether a remand would be appropriate in this case, finding that to remand this claim for further development would only result in unnecessarily imposing additional burdens on VA without any likelihood of benefit flowing to the Veteran. As this is to be avoided, and the evidence of record is sufficient to make a decision in this case, the Board finds remand is not needed or appropriate. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); 38 U.S.C. § 7261(b). In light of the foregoing, the Board finds the weight of the most probative evidence of record is against the Veteran's claim for service connection for vertigo, claimed as dizziness, and his claim is denied. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.