Citation Nr: 21075112 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-31 807A DATE: December 17, 2021 ORDER A 40 percent rating beginning January 3, 2019, but not before and not in excess, for bilateral hearing loss is granted. An initial compensable rating for left ear hearing loss from March 23, 2012 to August 30, 2013, is denied. Service connection for a heart disability, including coronary artery disease, is denied. Service connection for hypertension is denied. Service connection for diabetes mellitus type II is denied. Service connection for anemia is denied. Service connection for staph infection is denied. REMANDED Entitlement to compensation for total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, the evidence first shows worsening of his hearing, which was subsequently confirmed on July 2021 examination, during the Board hearing on January 3, 2019. 2. Prior to January 3, 2019, the record does not show bilateral puretone threshold averages and speech recognition scores to warrant a compensable rating. 3. The evidence does not show left ear puretone threshold average and speech recognition scores to warrant a compensable rating from March 23, 2012 to August 30, 2013. 4. The weight of the evidence is against finding in-service incurrence of a heart disability, hypertension, diabetes, or anemia or radiation exposure. 5. The weight of the evidence is against finding current staph infection or disabling residuals. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating beginning January 3, 2019, but not before and not in excess, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85-4.86, Diagnostic Code (DC) 6100. 2. The criteria for an initial compensable rating for left ear hearing loss from March 23, 2012 to August 30, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85-4.86, DC 6100. 3. The criteria for service connection for a heart disability, including coronary artery disease, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 5. The criteria for service connection for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for anemia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 7. The criteria for service connection for staph infection have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1972 to October 1974. INCREASED RATING 1. An increased rating for bilateral hearing loss from August 30, 2013, forward 2. An initial compensable rating for left ear hearing loss from March 23, 2012 to August 30, 2013 Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of puretone audiometry tests. See 38 C.F.R. §§ 4.85-4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a puretone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board first notes that all applicable tests include valid puretone and speech discrimination scores. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average puretone threshold, or the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. A Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Then, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. First, the Board reviewed the evidence and finds the Veteran's left ear hearing loss does not meet the criteria for a compensable rating from March 23, 2012 to August 30, 2013. See 38 C.F.R. § 4.85. The only hearing evaluation of record prior to August 30, 2013, is that from March 2013. The March 2013 VA examiner found no hearing loss in the right ear and recorded left ear speech discrimination as 88 percent and puretone threshold average as 55 decibels. These measurements combine for a Roman numeral II in Table VI. The right ear is assigned a Roman numeral I designation prior to being service connected. See 38 C.F.R. § 4.85(f). Roman numeral designations of II and I combine for a zero rating in Table VII. Therefore, the appropriate rating for the Veteran's left ear hearing loss prior to August 30, 2013, is zero. Next, the Board has resolved doubt in the Veteran's favor and finds the 40 percent rating should be assigned beginning January 3, 2019, but the evidence does not support a rating in excess of 40 percent. The July 2021 examiner recorded speech discrimination scores as 60 percent in the right ear and 58 percent in the left ear and the following puretone thresholds findings: HERTZ 500 1000 2000 3000 4000 Average RIGHT 40 45 50 50 55 50 LEFT 55 55 60 85 70 67.5 The right ear 60 percent discrimination and 50 decibel average combine for a Roman numeral VI in Table VI, and the left ear 58 percent discrimination and 67.5 decibel average combine for a Roman numeral VII in Table VI. Roman numerals VII and VI combine for a 40 percent rating in Table VII. Additionally, the Veteran's left ear reveals an exceptional pattern of hearing impairment, and the Board has considered assigning a disability rating based on Table VIa. See 38 C.F.R. § 4.86(a). However, the Veteran's puretone threshold averages result in Roman numeral designations of V and III in Table VIa, which yield a rating less than 40 percent in Table VII. The 40 percent rating is the highest rating available based on the evidence. The Veteran reported that his hearing loss had worsened during the January 3, 2019, Board hearing. The record does not contain a hearing evaluation between January 2019 and the July 2021 examination. Therefore, the Board finds the January 3, 2019, report can be used as the first evidence that the Veteran's hearing disability had worsened to the level seen on the July 2021 examination. Finally, the Board finds the criteria for a compensable rating have not been met prior to January 3, 2019, for bilateral hearing loss. The August 2013 VA examiner recorded speech discrimination as 96 percent in the right ear and 94 percent in the left ear and the following puretone threshold results: HERTZ 500 1000 2000 3000 4000 Average RIGHT 25 30 25 30 40 31.25 LEFT 25 30 30 70 75 51.25 The right ear 96 percent speech recognition score combines with the 31.25 decibel threshold average for a Roman numeral I designation. The left ear 94 percent speech recognition score combines with the 51.25 decibel threshold average to also yield a Roman numeral I designation in Table VI. Those results combine for a zero rating in Table VII. The record also includes October and November 2018 treatment notes where the Veteran requested his hearing be evaluated and was subsequently fitted for hearing aids. Unfortunately, these treatment records hold limited probative value, because they do not include the results of puretone threshold testing required to assign hearing loss disability ratings. See 38 C.F.R. § 4.85(a). Notably, the speech discrimination percentages recorded in October 2018 are significantly higher than those in the July 2021 examination that resulted in the assignment of a 40 percent rating, and the October 2018 evaluator described right ear hearing as normal to mild and left ear hearing as normal from 250-1500 Hertz and moderate to moderately-severe from 2000-4000 Hertz, which is more consistent with hearing shown in August 2013. Accordingly, the Board does not find the October 2018 evaluation can be used as the date upon which the Veteran qualified for the 40 percent rating. The evidence does not support assignment of a compensable rating prior to January 3, 2019, for bilateral hearing loss. The Board has considered the Veteran's statements that he has difficulty hearing others speak. He is competent to report these symptoms, and the Board also finds him credible as the statements on this point are detailed and consistent. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. The Board finds that the competent medical evidence is more probative and outweighs the lay subjective reports of a more severe degree of disability, because they were provided by personnel with specialized training in hearing loss and directly address the rating criteria for hearing loss. Additionally, the rating schedule has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366, 368-69 (2017) (holding that "the rating criteria for hearing loss contemplate functional effects of decreased hearing and difficulty understanding speech in an everyday work environment"which "are precisely the effects that VA's audiometric tests are designed to measure"). SERVICE CONNECTION 1. Service connection for a heart disability, including coronary artery disease 2. Service connection for hypertension 3. Service connection for diabetes mellitus type II (diabetes) 4. Service connection for anemia Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" also known as the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to describe symptoms observable to his senses, but he is not competent to determine the cause of complex disabilities of the endocrine and cardiovascular systems, as this requires specialized medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the evidence, the Board finds the criteria for service connection for a heart disability, hypertension, diabetes, and anemia have not been met. 38 C.F.R. § 3.303. First, the Veteran has these current disabilities. VA treatment records show diagnoses of and treatment for diabetes, hypertension, coronary artery disease, and pernicious anemia during the claim period. The December 2013 VA examiner also diagnosed hypertension and diabetes. Thus, the first element of service connection is established. See Holton, 557 F.3d at 1366. Next, however, the weight of the evidence is against finding an in-service incurrence of heart disease, hypertension, diabetes, or anemia. Service treatment records are silent for diagnosis of or treatment for diabetes, hypertension, heart disease, or anemia. Moreover, VA treatment records show these disabilities were diagnosed many years after service with diabetes diagnosed in 1998, hypertension diagnosed in 2007, coronary artery disease first documented in February 2014, and anemia developing after a peptic ulcer in 2013. During the Board hearing, the Veteran reported dates of onset consistent with VA treatment records. Therefore, the evidence does not show he developed these disabilities during his active duty. Instead, the Veteran asserts that he developed these disabilities due to a compromised immune system and issues from radiation exposure in service. He reported being a radar operator in service and listening to radar signals. He testified that on one occasion, the radar equipment was knocked and pointed down at him, exposing him to radiation. However, there is no indication in the Veteran's service personnel records that he is a radiation-exposed veteran, such as a Record of Occupational Exposure to Ionizing Radiation, which would be kept in such circumstances. VA regulations provide that a radiation-exposed veteran is one who participated in radiation-risk activity, including participation at a nuclear detonation test site and gaseous diffusion plants. 38 C.F.R. § 3.309(d)(3). The Board does not doubt that the Veteran operated a radar, but there is no evidence to support that these duties should be classified as radiation-risk activity or that he was exposed to notable ionizing radiation, including records of doses of exposure. Moreover, none of the Veteran's disabilities are listed as diseases specific to radiation-exposed veterans. See 38 C.F.R. § 3.309(d)(1), (2). While the Veteran is competent to report experiences observable to his senses, he has not demonstrated any expertise that would allow him to make a scientific determination of radiation exposure. See Jandreau, 492 F.3d at 1377; see also 38 C.F.R. § 3.311. There is simply insufficient evidence to find he was involved in radiation-risk activity or exposed to ionizing radiation that could result in disability. As such, the evidence does not establish the in-service element of service connection, and the claims for diabetes, hypertension, heart disability, and anemia must be denied. 5. Service connection for staph infection After reviewing the record, the Board finds the criteria for service connection for staph infection have not been met, because the evidence does not show a current infection or disability. VA treatment records show the Veteran was treated for staph infection in October and November 2005. Although subsequent treatment records note his history of staph infection, there is no evidence of treatment for an ongoing staph infection or residual disability from staph infection during the claim period. Similarly, during the Board hearing, the Veteran reported a history of staph infection and being told the infection would "remain in [his] blood system," but he did not endorse any current symptoms or treatment. Without evidence that a disability was present within the period on appeal, there can be no valid claim for service connection. See Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013). REASONS FOR REMAND 1. Entitlement to compensation for TDIU is remanded. The Veteran has asserted that he is unable to work due to his service-connected hearing loss and tinnitus. The Veteran receives a 40 percent rating for bilateral hearing loss beginning January 3, 2019, and a 10 percent rating for tinnitus, combining for a 50 percent total disability rating. Generally, to be eligible for TDIU, a percentage threshold must be met; for a single disability or disabilities affecting the same body system, the threshold is 60 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, it is the established policy of VA to rate totally disabled all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. In cases where a veteran fails to meet the percentage standards, rating boards should submit the claim to the Director, Compensation Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). Thus, the Board finds the Veteran's claim for TDIU should be submitted to the Director, Compensation Service. The matters are REMANDED for the following action: 1. Submit the Veteran's claim for TDIU based on hearing loss and tinnitus to the Director, Compensation Service for extra-schedular consideration. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.