Citation Nr: A21020113 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 201202-130334 DATE: December 16, 2021 ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to service connection for tinnitus is granted. Entitlement to an initial rating of 100 percent for tonic-clonic seizures or grand mal epilepsy, from September 14, 2019, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran has not had bilateral hearing loss to an extent recognized as a disability for VA purposes throughout the pendency of the claim or any time. 2. The Veteran's tinnitus is related to service. 3. The evidence is at least evenly balance whether the Veteran's seizure disorder has averaged at least one major seizure per month over the last year. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1101, 1111, 1110, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 100 percent for seizure disorder, from September 14, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8910. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 2013 to September 2019. These matters come before the Board of Veterans' Appeals (Board) from a December 2019 rating decision. In a December 2020 VA Form 10182, the Veteran elected Board review of the issues herein through the evidence submission docket under the Veterans Appeals Improvement Modernization Act of 2017 (AMA). Accordingly, the Board will consider the evidence of record as of the date of the December 2019 rating decision, and any additional evidence received with the Veteran's December 2, 2020 notice of disagreement (NOD) to the Board and during the subsequent 90-day evidentiary window from December 2, 2020. 38 C.F.R. § 20.303. The Veteran submitted an appellate brief and medical opinions dated March 2021, which is within the 90-day window. Therefore, the Board has considered this evidence in its adjudication of the issues on appeal. However, the Veteran also submitted a lay statement dated in April 2021, which was received outside of the 90-day evidentiary window. As the April 2021 lay statement was added to the claims file during a time when new evidence is not allowed, the Board may not consider the evidence. 38 C.F.R. § 20.300. However, the Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. I. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection, an appellant 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (2009); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). 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 puretone audiometry test. 38 C.F.R. § 4.85. 1. Entitlement to service connection for bilateral hearing loss. The determination of whether the Veteran currently has a hearing loss disability is governed by 38 C.F.R. § 3.385. Under VA regulations, hearing loss is considered a disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies of 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. Pure tone thresholds above 20 decibels indicate some hearing loss, irrespective of whether it is severe enough to qualify as a disability for VA compensation purposes. See Hensley v. Brown, 5 Vet. App. 155 (1993). In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as a current disability, there must be evidence of the condition at some time during the claim period. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). In this case, while the Veteran contends that he should be service connected for bilateral hearing loss, the Board finds that service connection is not warranted because there is no competent evidence of record that he has current hearing loss to an extent recognized as a disability for VA purposes and has not had such disability at any time during the pendency of his claim or approximate thereto. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran underwent a VA hearing examination in October 2019. The results of the October 2019 examination show that the pure tone thresholds for the Veteran's right ear were 10, 10, 10, 10 and 5 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. The pure tone thresholds for the Veteran's left ear were 10, 15, 5, 5 and 5 decibels at 500, 1000, 2000, 3000 and 4000 Hertz, respectively. Speech audiometry revealed speech recognition ability of 100 percent in both ears. These results do not show any current hearing loss disability as defined by VA. See 38 C.F.R. § 3.385. Moreover, the examiner who conducted the October 2019 examination opined that the Veteran's hearing ability was normal, bilaterally. Additionally, there are no other adequate medical records establishing that the Veteran has any current hearing loss disability as defined by VA at any time during the claim period. While the Veteran is competent to report difficulty hearing because this requires only personal knowledge as it comes to him through his senses, and the Board has no reason to challenge the credibility of his contentions, he is not competent to offer a diagnosis in this case. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current claim period and by service records obtained and associated with the claims file. The medical professional has opined that the Veteran does not have bilateral hearing loss disability as defined by VA. Although veterans are competent to opine as to some medical matters, Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n. 4 (Fed. Cir. 2007), VA has determined that for hearing loss to constitute disability, certain audiometric and speech recognition scores must be present. The Board is bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104 (c); 38 C.F.R. §§ 19.5, 20.101(a). The above evidence does not establish bilateral hearing loss to the extent recognized as a disability for VA purposes, and the Veteran has not alluded to the existence of any other evidence establishing a current bilateral hearing loss disability. Despite the Veteran's competent and credible reports, the determination of whether hearing loss constitutes a disability for VA purposes is determined by a mechanical application of the definition found in 38 C.F.R. § 3.385 to audiometric (pure tone threshold and Maryland CNC) testing results. The provisions of 38 C.F.R. § 3.385 do not authorize a finding of hearing loss disability when pure tone thresholds and/or speech recognition scores fail to meet the requirements of the regulation. Hence, although the Veteran has reported complaints of hearing loss, the Board is bound by the testing results and has no discretion in this regard. As there is no competent evidence that would establish the current disability element with regard to the hearing loss claim, entitlement to service connection for hearing loss cannot be granted on any basis. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that there can be no valid claim for service connection "[i]n the absence of proof of a present disability"). In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this instance. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. 2. Entitlement to service connection for tinnitus. For the reasons that follow, the Board finds that the Veteran's tinnitus is related to his active duty military service. Here, the Board finds that the Veteran has a current diagnosis of tinnitus. See October 2019 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). Therefore, the current disability requirement is met. The second element is also met. The Veteran reported that his tinnitus began gradually while in service. Moreover, service treatment records show instances of cerumen removal through irrigation. Thus, the issue is whether there is a link between the Veteran's current tinnitus and his active duty service. In this regard, the Board finds persuasive the private medical opinion dated March 2021 from J.L., who opined that the Veteran's tinnitus is likely related to his cerumen removal during service. See March 2021 Medical Opinion by J.L. In forming this opinion, J.L. properly and thoroughly considered the lay statements, medical records and medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). Based on the foregoing, the Board finds the opinion to be sufficient and entitled to probative weight. There is no opinion that is specifically contrary to a conclusion that the Veteran's tinnitus is related to cerumen removal during service In light of the above medical opinion, service connection for tinnitus is warranted. II. Higher Initial Rating Disability ratings are based on the average impairment of earning capacity established in the Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. As the Veteran is appealing the original assignment of a disability evaluation following the award of service connection, it is not the present level of disability, which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial rating higher than 40 percent for tonic-clonic seizures or grand mal epilepsy. The Veteran's seizure disorder is currently rated as 40 percent disabling, under 38 C.F.R. § 4.124a, DC 8910. DC 8910 provides that grand mal epilepsy be rated under the general rating formula for major seizures (General Rating Formula). Under the General Rating Formula, a 100 percent rating requires an average of one major seizure per month over the last year. 38 C.F.R. § 4.124a. The rating schedule defines a major seizure as a seizure characterized by the generalized tonic-clonic convulsion with unconsciousness. When a veteran experiences both major and minor seizures, VA rates the Veteran's disability based on the predominating type. Id. In this case, the Veteran underwent a VA seizure examination in October 2019. The examiner confirmed a diagnosis of tonic-clonic seizures or grand mal epilepsy. Continuous medication was required for control over this condition. The examiner reported that the Veteran had major seizures, at least 1 in 3 months over the past year. The Veteran also submitted a private medical opinion dated March 2021 from J.L. J.L. opined that the Veteran suffers from major seizures that at least as likely as not occur at a rate of between 1 and 3 seizures per month over the last year. The stated rationale is that the Veteran is diagnosed with grand mal epilepsy that arose while on active duty in early 2019. The Veteran suffered from several major seizures that were occurring near weekly before he was prescribed medication daily. The October 2019 VA examiner noted that the Veteran had at least two seizures in the past year, and that he averaged at least 1 seizure every 3 months in the last year. After reviewing all military treatment records and private treatment records, it is clear that the Veteran actually suffers major seizures that occur at a rate of between 1 and 3 seizures per month over the last year. The Veteran had first experienced a seizure in late January of 2019 and the VA examination was conducted in October 2019. Due to this, there were 3 months in the last year that the Veteran experienced no seizures before his epilepsy condition arose. This skewed the average against the Veteran which resulted in the examiner estimating the average number of seizures over the last year as lower. It must also be noted that the Veteran appears to suffer from nocturnal major seizures. The frequency of these appear to occur monthly as well, but are not well documented as the Veteran reported that his girlfriend observes these nocturnal seizures, but they do not report to the ER after witnessing a seizure if the Veteran recovers after several minutes. It is therefore at least as likely as not that the Veteran suffers major epileptic seizures at a frequency of one to three major seizures per month over the last year. The Board is persuaded by the private medical opinion dated March 2021 from J.L., as, in forming this opinion, J.L. properly and thoroughly considered the lay statements, medical records and medical literature. See Nieves-Rodriguez, 22 Vet. App. at 302-05. In light of the persuasive private medical opinion dated March 2021 from J.L., along with the fact that the Veteran also suffers from additional nocturnal seizures, the Board finds that the evidence is at least evenly balanced as to whether the Veteran has had one or more major seizures per month throughout the claim period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran has had at least one major seizure per month during the period on appeal. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Accordingly, an initial rating of 100 percent, from the September 14, 2019 effective date of service connection, for tonic-clonic seizures or grand mal epilepsy is warranted. Finally, in conjunction with the appeal for a higher initial rating for tonic-clonic seizures or grand mal epilepsy, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Cho, 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.