Citation Nr: 21073168 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-16 638 DATE: December 7, 2021 ORDER An initial compensable disability rating for service-connected serous otitis media of the right ear with hearing loss is denied. REMANDED Entitlement to service connection for a right wrist condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a lower back condition is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's right ear serous otitis media with hearing loss has been manifested by no worse than Level I hearing acuity. CONCLUSION OF LAW The criteria for an initial compensable disability rating for service-connected right ear serous otitis media with hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.87, Diagnostic Code 6100, 6201. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1997 to June 1998 and from June 2002 to May 2007. This case was previously before the Board in June 2019 when it was remanded for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). Throughout the rating period on appeal, the Veteran's service-connected right ear disability has been rated by analogy under the criteria of 38 C.F.R. § 4.87, Diagnostic Code 6201 for rating chronic nonsuppurative otitis media. Chronic nonsuppurative otitis media with effusion (serous otitis media), is rated based on hearing impairment. 38 C.F.R. § 4.87, Diagnostic Code 6201. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average hearing threshold. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86 ). One such pattern occurs when puretone thresholds at each of the four specified frequencies are 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. An examination for hearing impairment for VA purposes 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 will be conducted without hearing aids. 38 C.F.R. § 4.85 (a). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist's description of the functional effects of a veteran's hearing disability was somehow defective, the veteran bore the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. Although service connection has only been granted for the Veteran's right ear hearing loss, for rating purposes, VA will consider the Veteran's left ear hearing loss as service-connected under certain circumstances. First, the Veteran's non-service-connected left ear hearing loss must satisfy the provisions 38 C.F.R. § 3.385. Second, that left ear hearing loss must not be due to his own willful misconduct. And third, the Veteran's right ear must, by itself, be compensable to a degree of 10 percent or more. See 38 C.F.R. §§ 3.383(a)(3), 4.85(f). The Veteran underwent a VA examination for ear conditions in March 2014. He reported that he experienced an acute episode of right ear pain associated with hearing loss during his flight back from Iraq in December 2006. Since this incident, he continues to have intermittent episodes, specifically when he gets a cold/upper respiratory infection and/or when he flies. Taking a decongestant prior to flying alleviates the problem. The examiner, however, did not perform audiological testing and did not provide additional relevant evidence. Nonetheless, following this VA examination, the AOJ granted entitlement to service connection for serous otitis media and evaluated his condition as non-compensable, effective February 27, 2014, in a May 2014 rating decision. The Veteran timely appealed, contending that he experiences major pressure built up in his right ear when he flies or travels and thus should receive a 20 percent disability rating. See September 2016 VA Form 9. Another VA examination was performed in May 2017. The examiner identified the Veteran's diagnosis of intermittent right acute otitis media and reiterated the information provided in the prior examination, but no further evidence was garnered from this examination. A November 2019 VA examination report notes a diagnosis of intermittent acute serous otitis media. The examiner also reported the Veteran's complaints of right ear popping and 6/10 pain. The Veteran stated he sometimes cannot hear for up to 1 week occurring once every 1-2 months especially when flying. The examiner said it is unlikely he has active serous otitis media because he has not seen a medical professional for symptoms in years and has not taken antibiotics since 2006/2007. He further noted there is no change in his diagnosis and no additional diagnoses have been rendered. In December 2019 the Veteran underwent an audiology examination to assess his level of hearing acuity. At the time of the December 2019 VA examination, the Veteran's pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 40 40 LEFT 30 20 25 25 15 The average pure tone threshold for the right ear was 40, and the average pure tone threshold for the left ear was 21.25. Speech audiometry revealed speech recognition ability of 94 percent in his right ear and 100 percent in his left ear. Under Table VI the right ear hearing acuity is level I. An exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86 ) is not shown; therefore, Table VIA is not for consideration. The Board observes that the Veteran does not have a hearing loss disability (as defined in 38 C.F.R. § 3.385 ) in his nonservice-connected left ear; therefore, the provisions of 38 C.F.R. § 3.383 (a)(3) do not apply. The nonservice-connected left ear hearing loss is thus assigned a hearing level acuity Level I in determining the appropriate rating for the right ear hearing loss. 38 C.F.R. § 4.85 (f). Under Table VI, when hearing loss in one ear is Level I and in the other ear Level I, a 0 percent rating is warranted. See 38 C.F.R. §§ 4.85, 4.86. The Veteran has been rated at the highest possible rating for hearing loss in the right ear based on the applicable rating criteria. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a higher rating for right ear serous otitis media with hearing loss, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49(1990); 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102. REASONS FOR REMAND Service Connection for Right Wrist, Right Knee and Lower Back Disabilities Unfortunately, remand is required for the remaining issues. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When this matter was previously before the Board in June 2019, the Board remanded to seek the Veteran's medical and personnel records from the U.S. Military Academy (USMA) at West Point, New York. In this regard, the record indicates that the Veteran was a cadet at West Point prior to entering into active duty in June 2002. The Veteran's period as a cadet at the USMA is considered active duty for VA compensation purposes. 38 C.F.R. § 3.6 (b)(4). While some treatment records from Kellar Army Hospital in West Point New York were obtained on remand, the Veteran's complete service treatment records have not been obtained. Additionally, his personnel records (which would verify his dates as a USMA cadet) were not obtained. Therefore, the case must be remanded to request the USMA to provide all medical and personnel records related to the Veteran. Additionally, regarding the Veteran's low back claim, he maintains that his current low back disability is related to falling from and climbing in and out of tanks, as well as sleeping and eating in tanks, during his military service, which includes combat. See March 2014 VA examination report, September 2016 VA Form 9. He reported that his low back pain began in service and worsened thereafter. See October 2014 NOD, statement received in June 2021. The medical opinions provided to date do not address the Veteran's contentions. Therefore, the Board finds that a remand is necessary to obtain a medical addendum opinion in this matter. The matters are REMANDED for the following action: 1. Contact the U.S. Military Academy at West Point, New York, and/or any other appropriate source, and request they provide all outstanding medical and personnel records related to the Veteran. His dates of attendance at the USMA should be verified for the record. All medical treatment records from this period should be requested. A negative reply should be requested if records are not available. If it is determined that any of the above records or information does not exist and that further search efforts would be futile, a formal finding of unavailability should be entered pursuant to 38 C.F.R. § 3.159 (c)(2). The Veteran should duly notified of any such formal finding and be given an opportunity to respond. 2. Thereafter, obtain an addendum opinion as to the etiology of the Veteran's low back disability. The claims file must be provided to and reviewed by the examiner. An examination should only be scheduled if the medical professional deems it necessary. The examiner is asked to: a) Identify any and all low back disabilities diagnosed during the appeal period. b) For each low back disability diagnosed, opine as to whether it is at least as likely as not (a probability of 50 percent or greater) incurred in or related to service. The examiner must consider and discuss the Veteran's statements that he has had low back problems since service. The examiner should also consider the Veteran's contentions that his low back disability is related to falling from, climbing in and climbing out of tanks, as well as sleeping and eating in tanks, during his military service, which includes combat service. The examiner must also provide an explanation for all opinions provided. If any requested opinion cannot be provided without resort to speculation, the examiner should explain whether the inability to provide the opinion is due to the limits of the examiner's medical knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the opinion to be provided. K. R. FLETCHER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.