Citation Nr: 21073151 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 18-20 441 DATE: December 7, 2021 ORDER Entitlement to service connection for fatigue secondary to insomnia is granted, subject to the laws and regulations governing payment of monetary benefits. Entitlement to a compensable rating for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran's current fatigue, which impairs his functioning at work, is due to his service-connected insomnia. 2. The evidence of record is insufficient to establish that the Veteran's left ear hearing loss has manifested to a severity warranting a compensable rating at any point during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for fatigue as secondary to insomnia and sleep disorder have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a). 2. The criteria for a compensable initial rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1992 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Board remanded the matter for medical examinations. The Veteran seeks service connection for fatigue and a compensable rating for service-connected left-ear hearing loss. 1. Service Connection for Fatigue Generally, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a current disability that is proximately due to or aggravated in severity beyond its natural progression by a service-connected injury or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran seeks service connection for fatigue, which he states is caused by trouble sleeping plus waking up at night and having difficulty falling back asleep, which fatigues him while at work the following days. At a January 2020 Board hearing, he testified that while he had not been diagnosed with chronic fatigue syndrome, his doctors had told him that his fatigue was due to not getting enough sleep, which he believed was related to his PTSD and insomnia. The Board's prior decision granted service connection for PTSD and remanded the Veteran's claim for service connection for insomnia, which was subsequently granted in a September 2021 rating decision. It was noted that insomnia and sleep disorder are considered mental disabilities and were to be bundled together with PTSD and assigned a single evaluation. As to a formal diagnosis of a condition such as chronic fatigue syndrome, the Veteran was provided with a VA examination in September 2017, with that examiner finding that the Veteran did not meet the diagnostic criteria for chronic fatigue syndrome either at that time or at any time in the past. Though a new examination was provided in September 2021 at which the examiner purported to diagnose the Veteran with chronic fatigue syndrome, the examiner's report found that the Veteran's condition had not reduced his daily activity level to less than 50 percent of pre-illness level and indicated that there was no significant diagnostic testing findings or results that could have excluded all other clinical conditions that may produce similar symptoms. Thus, in light of these findings, the September 2021 examiner's diagnosis of chronic fatigue syndrome is not a valid diagnosis for VA compensation purposes, per regulation. 38 C.F.R. § 4.88a. Notwithstanding that the evidence does not support that the Veteran has a current disability of chronic fatigue syndrome, the Board finds that the Veteran's fatigue condition is sufficient to constitute a current disability in light of his competent testimony that his fatigue impairs his ability to function normally at work. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020) (holding that the Federal Circuit's decision in Saunders "applies broadly to include more than just pain"); Wait v. Wilkie, 33 Vet. App. 8, 15-16 (2020) (holding that a symptom constitutes a disability where it is shown to impair earning capacity); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As noted in the Board's prior decision, the September 2017 VA examiner opined that "[the Veteran's] report of fatigue is more likely than not a symptom of his insomnia and ADD medication side effect." Though at the time of that decision the Veteran was not yet service connected for insomnia, service connection for insomnia was granted on remand in a September 2021 rating decision. Thus, the Board finds the evidence is sufficient to establish that the Veteran's current fatigue disability is related to his now-service-connected PTSD with insomnia and sleep disorder. 38 C.F.R. § 3.310(a). Regarding a possible intervening relation between the Veteran's current fatigue disability and non-service-connected ADD medication side effects, the Board notes that a September 2021 mental health examination report found that it was not possible to differentiate the symptoms or apportion impairment between the Veteran's PTSD and amphetamine use. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, service connection for fatigue as secondary to service-connected insomnia is granted. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a). 2. Increased Rating for Left Ear Hearing Loss The Veteran seeks an increased rating for his left ear hearing loss. Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran's left ear hearing loss is rated under Diagnostic Code (DC) 6100. 38 C.F.R. § 4.85. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of hearing loss range from noncompensable to 100 percent based on an organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, which is measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. VA audiological evaluations are conducted using a controlled speech discrimination test together with the results of puretone audiometry tests. The vertical line in Table VI (printed in 38 C.F.R. § 4.85) represents nine categories of the percentage of discrimination based on a controlled speech discrimination test. The horizonal columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of speech discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate for the numeric designation for the level for the ear having the poorer hearing acuity. If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). Turning to the evidence, audiometric testing at an October 12, 2015 VA examination found the following thresholds in the left ear: 1000Hz 2000Hz 3000Hz 4000Hz Average Left 20dB 25dB 40dB 55dB 35dB Speech recognition testing using the Maryland CNC word list found a speech discrimination score of 96 percent in the left ear. Applying the rating schedule using the guidelines of 38 C.F.R. § 4.85 yields a Roman numeral designation of I in the left ear and, combined with the I designated for the non-service-connected right ear, yields a noncompensable rating. 38 C.F.R. §§ 4.85(b), (e). Another VA examination was provided on April 13, 2017, with the following results of audiometric testing: 1000Hz 2000Hz 3000Hz 4000Hz Average Left 30dB 20dB 30dB 55dB 34dB Speech recognition testing with the Maryland CNC word list found a speech discrimination score of 84 percent. Under Table VI, a Roman numeral designation of II results for the left ear, and combined with a I for the right ear, a noncompensable rating results. Id. Following the Board's prior May 2021 remand, a new examination was provided on September 20, 2021, with the following audiometric testing findings: 1000Hz 2000Hz 3000Hz 4000Hz Average Left 35dB 30dB 40dB 55dB 40dB The speech discrimination score using the Maryland CNC word list was 80 percent. Per Table VI, a Roman numeral designation of III results for the left ear, and combined with a I for the non-service-connected right ear, a noncompensable rating still results. Id. Thus, based on the evidence, the applicable regulations do not provide a compensable rating at any point during the appeal period. The Board acknowledges that the audiometric testing indicates that the Veteran's condition has worsened, and that the Veteran continues to experience functional impairment such as being unable to hear his family or other persons talking to him. Such functional impairments of hearing loss, however, are contemplated by the rating criteria, and the Board is bound to apply these regulations as written. Here, the rating criteria provide for a noncompensable rating. (Continued on the next page) Thus, the claim for an increased rating for left ear hearing loss unfortunately must be denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Davis, 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.