Citation Nr: 21077264 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-05 596 DATE: December 29, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for vertigo is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss at any time during or approximate to the pendency of the claim. 2. The Veteran's left ear hearing loss was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The Veteran's vertigo manifested with occasional dizziness. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an initial evaluation in excess of 10 percent for peripheral vestibular disorder are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1976 to July 1992, and from February 2002 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2013 and September 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims in July 2021 for development of an intertwined issue, which has been completed. 1. Entitlement to service connection for bilateral hearing loss The Veteran seeks service connection for bilateral hearing loss. He asserts that his hearing loss is related to noise exposure during active service. 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For VA purposes, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service treatment records showed normal hearing in both ears. There is no separation hearing examination from the Veteran's first period of service, however the July 1998 Reserve examination revealed normal hearing bilaterally. A July 2005 reference audiogram revealed normal hearing bilaterally. Post service records from July 2013 showed mild hearing loss at 4000 Hz in the left ear. The Veteran was afforded a VA examination in June 2020. The Veteran reported significant occupational and recreational noise exposure during service. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 5 10 20 20 LEFT 15 10 10 30 40 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 94 percent in the left ear. Based on these objective results, the Board finds that there is no competent evidence of hearing loss in the right ear, for VA purposes at any time during the appeals period. Both the Veteran's audiometric and speech recognition (Maryland CNC) scores fail to meet the objective criteria set out by the VA to qualify as hearing loss, as noted above. Here, while the Board acknowledges that the Veteran's speech discrimination results were noted at 94 percent, such is insufficient for a finding of a hearing disability, as the criteria requires such score to be below 94 percent. As such, the Board must find that the Veteran's right ear does not meet the criteria for a finding of a current disability, for VA compensation purposes. 38 C.F.R. § 3.385. To this end, the Board notes that a thorough examination of the record also corroborates such findings regarding the Veteran's hearing. The Board notes that the June 2020 VA examiner explained that review showed normal hearing bilaterally, both during and after separation from service. In this regard, the examiner obtained additional hearing exams dated June 1979, April 1989, and May 1990 from the Joint Hearing Loss and Auditory System Injury Registry (JHASIR) which revealed normal hearing bilaterally. Subsequent examinations in the record from the enlistment examination for the reserve showed normal hearing in both ears with no significant threshold shifts. A private medical audiological examination from July 2013 showed normal hearing in the right ear and mild loss at the 4000 Hz for the left ear. As such, the Board must find that a current disability of hearing loss for the right ear is not found, and as such, service connection for the right ear is not warranted. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board realizes that the Veteran has asserted that he has a hearing loss disability. While the Board acknowledges that the Veteran may be competent to speak to the fact that his hearing is less than it was before, or as it was prior to service, he is not competent to speak to the specific level or severity of any hearing loss as it relates to achieving audiometric guidelines. For the purposes of applying the laws and regulations administrated by VA, the level of impairment is determined by a mechanical application of the objective criteria of VA regulations. Here, the objective criteria are not met by the Veteran's right ear hearing acuity, and therefore, the Veteran's hearing loss cannot be considered a disability for which service connection may be granted for the right ear. With regards to the Veteran's left ear, the Board finds that the July 2020 VA examination did confirm hearing loss, for VA purposes. A close review of the nexus opinion, however, reveals an opinion that finds against any etiological nexus to service. Here, the examiner concluded that this hearing loss is less likely as not due to the military noise exposure, noting that there was no significant threshold shift at any point during his active service, noting review of newly acquired audiological examinations for during and post-service. To this end, the examiner noted that the Veteran, even for the left ear, had normal hearing until his 2013 VA examination, which only showed some hearing loss at higher frequencies. In addition, the Veteran was noted to report occupational and recreational noise exposure after service. The examiner ultimately concluded that the Veteran's hearing loss in his left ear was more likely due to his recreational/occupational noise exposure as a civilian, presbycusis, or some other etiology, and not related to his military service. The examiner also noted medical study and treatise in which conclude against the finding of delayed-onset hearing loss. The Board concludes that, while the Veteran has a current diagnosis of left ear hearing loss, and evidence shows that in-service noise exposure occurred, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of left ear hearing loss began during service or is otherwise related to an in-service injury, event, or disease. The Board finds that the June 2020 VA examiner's opinion that the Veteran's hearing loss was not at least as likely as not related to an in-service injury, event, or disease, including in-service noise exposure, to be higher probative. The examiner explained that service treatment records in the file showed normal hearing through service. Post-service records revealed mild hearing loss at 4000 Hz, but the examiner noted that there was still no significant threshold shift between a 2013 private medical audiogram and service treatment audiogram evaluations. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his hearing loss is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the June 2020 VA examiner's opinion. As the preponderance of the evidence is against the Veteran's claim for service connection, there is no reasonable doubt to be resolved, and the claim for service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 2. Entitlement to an increased rating for vertigo The Veteran seeks a higher initial evaluation for peripheral vestibular disorder. He is currently in receipt of a 10 percent evaluation under DC 6204, effective January 20, 2010. The Veteran asserts that the 10 percent evaluation assigned for his vertigo did not accurately reflect the current severity of his condition. DC 6204 provides ratings for peripheral vestibular disorders. Peripheral vestibular disorders manifesting occasional dizziness are rated 10 percent disabling. Peripheral vestibular disorders manifesting with dizziness and occasional staggering are rated 30 percent disabling. A Note to DC 6204 provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable rating can be assigned under DC 6204. Hearing impairment or suppuration shall be separately rated and combined. 38 C.F.R. § 4.87. Private medical records reveal outpatient treatment for vertigo. In September 2013, the Veteran presented with a history of benign paroxysmal positional vertigo (BPPV). Physical examination showed casual and tandem gait were within normal limits. In November 2013, the Veteran's treatment provider completed a chronic vertigo / Meniere's impairment questionnaire. The clinician noted chronic vertigo with a history of frequent balance problems. They indicated that the Veteran had an average of three vertigo attacks per month which lasted between two and 12 hours. In a December 2013 letter, the Veteran's treatment provider confirmed, in relevant part, complaints of vertigo and dizzy spells. The provider noted that the Veteran had gone to the emergency room in June 2013 for these symptoms and indicated that they were getting worse. He noted the Veteran received oral medication and appeared two to three times a month for treatment. In a July 2014 office visit, the Veteran reported dizziness and vertigo. He described light-headedness, loss of balance, and spinning. He relayed that the timing of attacks was intermittent, occurring three to four times per month. At a May 2015 visit, the Veteran presented to establish care. He reported a history of vertigo and was followed by an ENT. Physical examination indicated normal gait. The Veteran submitted a supporting letter from his treatment provider dated May 2015. He noted that the Veteran has ongoing balance problems since June 2013. The Veteran experiences attacks of vertigo that can last for minutes to days. Between his attacks, his balance was less impacted, and he was more functional, but during attacks he reported being quite incapacitated. Testing supported the Veteran's subjective reports of dizziness with objective findings of vestibular dysfunction. December 2015 and December 2016 letters confirmed attacks of vertigo. The Veteran was afforded a VA examination in June 2020. The Veteran reported one to four vertigo attacks per month, which last up to 24 hours. Physical examination showed no vertigo or nystagmus during the test, and limb coordination of the ear was normal. A Dix Hallpike test for vertigo was noted as normal. Regardless of the specific etiology and given the episodic nature of the Veteran's vertigo attacks, the examiner concluded the Veteran should not drive, balance on scaffolds, or climb ladders. The examiner diagnosed intermittent vertigo symptoms with vertiginous migraine. The Veteran was afforded a VA examination in October 2021. The Veteran reported having vertigo "attacks" since 2013. He reported ongoing intermittent episodes of dizziness. He related that he had episodes of vertigo three to four times per week that lasted up to 4 hours, where he felt off-balance, and room spinning dizziness. He also reported intermittent impaired gait and nausea associated with his episodes of vertigo. Physical examination showed normal ear and ear canal, though visualization of the tympanic membrane was obscured bilaterally by cerumen. Romberg test was abnormal or positive for unsteadiness. Gait was normal, and no vertigo or nystagmus was noted in Dix Hallpike Test. The examiner diagnosed vestibular migraines and vertigo. The Veteran is in receipt of individual unemployability for the entire period on appeal. Thus, the issue of entitlement to a total disability rating due to individual unemployability (TDIU) during the appeals period is not raised by this record. Rice v. Shinseki, 22 Vet. App. 447 (2009). (Continued on the next page) The Board finds that the Veteran's peripheral vestibular disorder does not warrant a higher rating. The Veteran's symptoms include dizziness and occasional instability. However, none of the clinicians or VA examiners have observed a staggering gait. The Veteran reported at his October 2021 of impaired gait during severe vertigo episodes but has not reported that he has experienced a staggering gait anytime since the grant of service connection. Thus, the preponderance of evidence is against the finding that the criteria for a higher rating is present, and the Veteran's claim for an initial rating in excess of 10 percent is not warranted. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). There are no additional expressly or reasonably raised issues. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.