Citation Nr: 21076845 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-47 876 DATE: December 28, 2021 ORDER Entitlement to service connection for diverticulosis, constipation, diarrhea, and bloat (claimed as gastrointestinal impairment), is dismissed. Entitlement to service connection for a traumatic brain injury (TBI) is denied. Entitlement to a disability rating greater than 20 percent prior to June 17, 2019, and greater than 60 percent from December 20, 2019, for bilateral hearing loss is denied. Entitlement to a disability rating of 40 percent from June 17, 2019, to December 19, 2019, for bilateral hearing loss is granted. FINDINGS OF FACT 1. The record evidence shows that, in June 2020, prior to the promulgation of a decision in the appeal, the Veteran notified VA that he wanted to withdraw his appeal of service connection for diverticulosis, constipation, diarrhea, and bloat. 2. The record evidence does not show that the Veteran currently experiences disability due to his claimed TBI. 3. The record evidence shows that, prior to June 17, 2019, the Veteran's bilateral hearing loss was no worse than Level V in the right ear and Level VI in the left ear. 4. The record evidence shows that, from June 17, 2019, to December 19, 2019, the Veteran's bilateral hearing loss was no worse than Level VII in the right ear and Level VII in the left ear. 5. The record evidence shows that, effective December 20, 2019, the Veteran's bilateral hearing loss was no worse than Level IX in the right ear and Level IX in the left ear. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal have been met with respect to the issue of service connection for diverticulosis, constipation, diarrhea, and bloat. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204 (2020). 2. The criteria for service connection for TBI have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 3. The criteria for a disability rating greater than 20 percent prior to December 20, 2019, and greater than 60 percent thereafter, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2020). 4. The criteria for a disability rating of 40 percent from June 17, 2019, to December 19, 2019, for bilateral hearing loss have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1969 to December 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2015, June 2016, and December 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Dismissed Claim The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(a). 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. § 20.204. The Veteran requested that his appeal of the issue of entitlement to service connection for diverticulosis, constipation, diarrhea, and bloat be withdrawn in a June 2020 statement. As such, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this issue and it is dismissed. 1. Entitlement to service connection for a TBI The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for a TBI. The Veteran has asserted that he has TBI that is related to his active service. Service treatment records are silent for any complaint, treatment, or diagnosis for a head disability or TBI. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Post-service VA medical center (VAMC) records document conflicting reports of in-service head injuries. Findings from a March 2005 VAMC CT of the head/brain were unremarkable. In April 2012, a VAMC clinical neuropsychologist determined that, given the remoteness of any reported head injury, it was extremely unlikely that latent effects were now presenting. On VA TBI Disability Benefits Questionnaire (DBQ) in December 2019, the VA examiner concluded that the Veteran did not have a diagnosis of a TBI and had never had a TBI or any residuals of a TBI. The Board notes here that, in the absence of proof of a present disability, there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran is competent to identify the presence of observable symptomatology. He is not competent to provide a diagnosis of TBI as that requires medical expertise and is outside the realm of common knowledge of a layperson, however. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hence, the Board gives more probative weight to the competent medical evidence. He otherwise has not identified or submitted any evidence demonstrating his entitlement to service connection for a TBI. In summary, the Board finds that service connection for a TBI is not warranted. 2. Entitlement to an Increased Rating for Bilateral Hearing Loss The Veteran has asserted that his service-connected bilateral hearing loss is worse than accounted for by the currently assigned ratings. The Board notes initially that an April 2016 private audiological statement is invalid because there were no supporting audiogram and Maryland CNC word recognition scores. On June 17, 2019, the Veteran underwent a private audiological evaluation. An October 2020 VA examiner determined that the private evaluator did not use a controlled speech discrimination test (Maryland CNC). Therefore, the June 2019 private speech discrimination scores are invalid for rating purposes. When using the private audiometric test results as provided, the June 2019 findings were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 60 80 90 105 83.75 Left Ear 60 75 80 95 77.5 As the findings qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, the mechanical application of the above results merit a 40 percent rating from June 17, 2019, to December 19, 2019, when applied to Table VII. 38 C.F.R. § 4.85. On December 20, 2019, VA audiological examination, he reported that he could not hear or understand noises. Audiometric testing results were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 60 70 80 100 77.5 Left Ear 70 80 85 95 82.5 Speech discrimination scores were 36 percent in the right ear and 48 percent in the left ear. Given the average puretone thresholds, 77.5 in the right ear and 82.5 in the left ear, the mechanical application of the above results compels a numeric designation of Level IX in the right ear and Level IX in the left ear under Table VI. When those values are applied to Table VII, it is apparent that a 60 percent rating compensates the Veteran adequately for the level of disability which he experiences as a result of his service-connected bilateral hearing loss. 38 C.F.R. § 4.85. While the December 2019 VA audiological findings qualify as an exceptional pattern of hearing impairment, the use of the speech discrimination scores is appropriate for the Veteran under the provisions of 38 C.F.R. § 4.85. Additionally, the Board finds the use of Table VI is more advantageous for the Veteran. 38 C.F.R. § 4.86. The Board does not doubt that the Veteran experiences significant difficulties that as a result of his service-connected bilateral hearing loss; however, because hearing loss is a disability requiring a "mechanical application of the rating schedule," the Board cannot find a basis in law or regulation to support an increased rating under either period of time relevant to this appeal. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board acknowledges that the Veteran's reports as to the severity of his bilateral hearing loss and its impact on his daily life are competent and credible. They are less probative, however, than the objective audiology studies of record prepared by skilled professionals in determining that his service-connected bilateral hearing loss does not meet the criteria for increased ratings during either period of time relevant to this appeal. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, the December 2019 VA audiological examination report considered the Veteran's report of the impact his hearing loss had on his ordinary conditions of life, including his ability to work. Martinak v. Nicholson, 21 Vet. App. 447 (2007). He otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 20 percent prior to December 20, 2019, and greater than 60 percent thereafter, for bilateral hearing loss. Thus, the Board finds that the criteria for a disability rating greater than 20 percent prior to December 20, 2019, and greater than 60 percent thereafter, for bilateral hearing loss have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.