Citation Nr: 21006490 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 10-45 263 DATE: February 4, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for vertigo is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a compensable rating for perforation of the tympanic membrane of the left ear is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 8, 2014, is remanded. FINDINGS OF FACT 1. The Veteran’s vertigo is manifest by dizziness and occasional staggering. 2. The Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level VIII in the left ear. 3. The Veteran’s perforation of tympanic membrane of the left year has been assigned the maximum schedular rating authorized under Diagnostic Code (DC) 6211. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for service-connected vertigo are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.87, Diagnostic Code (DC) 6204 (2019). 2. The criteria for a compensable rating for bilateral hearing loss are not 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 a compensable rating for perforation of the tympanic membrane of the left ear are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.87, DC 6211. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1968 to June 1970. This case comes before the Board of Veterans’ Appeals (Board) on an appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Board remanded this appeal in July 2014 and November 2018. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. To accord justice in exceptional cases where the schedular standards are found to be inadequate, a RO is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for assignment of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 1. Entitlement to an evaluation in excess of 30 percent for vertigo The Veteran seeks a rating in excess of 30 percent for his vertigo. The currently assigned 30 percent disability rating is maximum rating available under DC 6204. In June 2009, the Veteran underwent a VA examination where he discussed his vertigo. He said he suffered from dizziness and that it had existed for the last 4-5 years prior. He associated his dizziness with ear infections, and that his dizziness had affected his daily activities, so much so, that he quit driving. Again, in November 2009, the Veteran underwent a VA examination for his ear conditions. He told the examiner that he had been suffering from vertigo for the past 5-6 years, primarily when standing, and sometimes when getting up. He reported no spinning vertigo, no nausea or vomiting, but sometimes had a sensation of pressure and imbalance in his ear with the associated otorrhea that occurs. The examiner noted the cursory neurological examination was essentially normal, and that the Veteran had no difficulty with tandem walking. In a 2010 Statement in Support of the Claim, the Veteran argued that his vertigo is getting worse and that he suffers chronic pain in his ears and dizziness. He said that he can hardly turn his neck, but when he does it has to be slow and concentrated so as to not stagger and fall. In his hearing testimony on August 15, 2012, the Veteran testified that his dizzy spells are worse, and that he does very little driving any more. He continued describing the dizzy spells as varying in frequency and duration but said that if he moves too fast or turns his head too fast, he can get them 2-3 times a day. The Veteran had multiple videonystagmography (VNG) tests. In October 2012, he complained of dizziness saying he had it for the last 2-3 years, and it would feel like he was spinning anywhere from 10-12 times a day. His VNG results in October 2012 were all within normal limits. Again, in May 2013, he complained of having occasional vertigo episodes, usually brought on by rapid head movements, saying his last episode was three weeks prior and only lasting a minute. His VNG results at this time were within normal limits, and the Veteran even reported his vertigo was much better controlled. In October 2014, after the July 2014 Board remand, the Veteran had a VA examination. He was diagnosed with mastoiditis, cholesteatoma, and vertigo, with perforation tympanic membrane residuals, and perforation of the tympanic membrane of the left ear. The Veteran reported his vertigo as beginning 10-15 years prior, that he gets dizzy several times a day when he turns his head a certain way, but that it was worse with positional changes. His vertigo and staggering were noted as occurring more than once weekly, with his vertigo lasting one to twenty-four hours, and his staggering lasting more than 24 hours. The Veteran indicated that as a truck driver, when he feels a dizzy spell coming on, he has no confidence that he can manipulate the vehicle. After the examination and reviewing the claims file, the examiner said there is no objective evidence from his annual ENT consults (2011, 2012, 2013) of any frequency, duration, or intensity for his vertigo with staggering claim. The examiner continued referencing the Veteran’s denial of vertigo in former VA examinations, saying any frequency or duration statements are felt to be mere speculation and subjective only, there is no effect on occupation. In a February 2016 otolaryngology note, it says that the Veteran complained of intermittent left otalgia but denied otorrhea and vertigo. Later the same year, in September, the Veteran had a VA examination for his ear conditions. The Veteran said he retired from truck driving 7-8 years prior due to back problems and recurrent dizziness. He reported the frequency of his vertigo being more than once weekly, and lasting less than an hour, indicating the severity being mild/moderate. In a February 2018 VA examination, the Veteran had another VNG test, and the results were normal. The examiner opined that the Veteran does not have labyrinthitis at this time, and if his dizziness is secondary to a past ear incident, including diagnosis of labyrinthitis, then his diagnosis is benign paroxysmal positional vertigo (BPPV). The examiner also said the Veteran reports having intermittent irregular episodes of vertigo, which would make commercial truck driving unsafe, precluding employment requiring prolonged standing, especially around moving machinery, but would not preclude sedentary work for several hours. Based on a totality of circumstances, the Board finds the Veteran’s vertigo does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. In fact, throughout the Veteran’s medical histories, there are times of improvement and control over his vertigo, and examiners have questioned the frequency and duration reported by the Veteran. He also reported no nausea or vomiting, no mention of gait issues, and one examiner even opined he would be able to perform sedentary work. The Board acknowledges that operating a vehicle during an episode would be dangerous, but avoiding driving is a prudent response to dizziness, an explicitly considered symptom. The Board finds that referral for consideration of an extraschedular rating is not warranted. See 38 C.F.R. § 3.321(b) (2020). Thus, in evaluating the claim, the Board finds that the VA examinations are competent and probative, and therefore, the preponderance of the evidence is against the Veteran’s claim. A rating in excess of 30 percent for vertigo shall be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a compensable rating for bilateral hearing loss The Veteran seeks a compensable rating for his service-connected bilateral hearing loss. In November 2018, the Board remanded the Veteran’s case for obtaining outstanding records, including VA audiograms from July 2009, December 2010, and January 2011, for another examination, and for adjudication of the October 2014, November 2016, and September 2017 VA audiological examinations. The VA responded to the Board remand by uploading the VA medical records from July 2009 to December 2018. A review of the records showed that there was a July 2009 audiology note, but not clear if an audiogram was performed that day; there was no indication of any audiology consult or ear treatment at any VA medical center in December 2010; and that the Veteran was referred for an audiogram in January 2011, but does not show an audiogram was performed that day, but there was one in February 2011. The RO was unable to find audiology records or an audiogram from December 2010, but believes the remand maybe have meant December 2011, referencing the prior remand in July 2014 requesting audiology records from December 2011. The RO included the December 2011 audiology records. Ratings for hearing loss are determined in accordance with findings obtained on an audiometric examination. Hearing loss disability evaluations range from noncompensable (0 percent) to a maximum of 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests (Maryland CNC) in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). The rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal hearing through Level XI for profound deafness. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. If there is an exceptional pattern of hearing loss, the Board must apply both Table VI and the alternate table, Table VIA, to determine which is more beneficial to the Veteran. 38 C.F.R. § 4.86 (a). The Veteran underwent a VA hearing loss examination in February 2011. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 25, 25, 40, and 80, respectively in the right ear and 40, 40, 95, and 105, respectively in the left ear. No exceptional pattern of hearing was shown. The pure tone threshold average in the right ear was 42.5 decibels, and the average in the left ear was 70 decibels. Speech discrimination was 96 percent in the right ear and 92 percent in the left ear. The foregoing audiometry test results equate to a Level I hearing in the right ear and Level II in the left ear pursuant to Table VI. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in one ear and Level II hearing in the other results in a 0 percent rating. The Veteran underwent another audiogram in December 2011. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 30, 25, 35, and 75, respectively in the right ear and 40, 40, 90, and 105, respectively in the left ear. No exceptional pattern of hearing was shown. The pure tone threshold average in the right ear was 41.25 decibels, and the average in the left ear was 69 decibels. Speech discrimination was 96 percent in the right and left ears. The foregoing audiometry test results equate to a Level I hearing in the right ear and Level II in the left ear pursuant to Table VI. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in one ear and Level II hearing in the other results in a 0 percent rating. In February 2012, the Veteran underwent another audiogram. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 35, 20, 25, and 70, respectively in the right ear and 40, 35, 70, and 90, respectively in the left ear. No exceptional pattern of hearing was shown. The pure tone threshold average in the right ear was 38 decibels, and the average in the left ear was 59 decibels. Speech discrimination was 92 percent in the right and left ears. The foregoing audiometry test results equate to a Level I hearing in the right ear and Level II in the left ear pursuant to Table VI. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in one ear and Level II hearing in the other results in a 0 percent rating. The Veteran underwent a hearing loss exam in October 2014. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 35, 25, 40, and 65, respectively in the right ear and 70, 55, 85, and 90, respectively in the left ear. Exceptional pattern of hearing was shown in his left ear. The pure tone threshold average in the right ear was 41 decibels, and the average in the left ear was 75 decibels. Speech discrimination was 96 percent in the right and left ears. The foregoing audiometry test results equate to a Level I hearing in the right ear and Level II in the left ear pursuant to Table VI. Since his left ear shows an exceptional pattern of hearing, applying Table VIA, his left ear equates to a Level VI. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in the right ear and Level VI hearing in the other results in a 0 percent rating. Again, in November 2016, the Veteran had a VA examination for hearing loss. During this examination, the pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 35, 20, 40, and 70, respectively in the right ear and 85, 70, 100, and 95, respectively in the left ear. Again, an exceptional pattern of hearing was shown in his left ear. The pure tone threshold average in the right ear was 41.25 decibels, and the average in the left ear was 88 decibels. Speech discrimination was 100 percent in the right ear and 96 percent in the left ear. The foregoing audiometry test results equate to a Level I hearing in the right ear and Level III in the left ear pursuant to Table VI. However, since the Veteran showed an exceptional pattern of hearing in his left ear, using Table VIA, his left ear is at Level VIII. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in one ear and Level VIII hearing in the other results in a 0 percent rating. In September 2017, the Veteran had another hearing examination and audiogram. His pure tone threshold measurements in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 35, 30, 50, and 75, respectively in the right ear and 85, 65, 100, and 90, respectively in the left ear. These results show an exceptional pattern of hearing in his left ear. The pure tone threshold average in the right ear was 47.5 decibels, and the average in the left ear was 85 decibels. Speech discrimination in the right ear was measured at 96 percent, however, the examiner determined the use of the speech discrimination score for his left ear was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of pure tone average and speech discrimination scores inappropriate. The foregoing audiometry test results for the right ear using Table VI equate to a Level I, and applying Table VIA for his left ear, it equates to a Level VIII. Applying the percentage ratings for hearing impairment found in Table VII, Level I hearing in one ear and Level VIII in the other results in a 0 percent rating. The Board finds that the evidence of record is adequate for rating purposes. The Board has carefully considered the lay assertions as to the severity of his hearing loss, and in no way discounts his assertions regarding his difficulty hearing or that his bilateral hearing loss should be rated higher. However, as stated above, the assignment of schedular disability ratings for hearing impairment is derived by mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann, 3 Vet. App. at 349. Based on the foregoing, the Board finds the VA examination competent and more probative and that the preponderance of the evidence is against the claim for an increased rating in excess of 0 percent. Therefore, the claim is denied. In reaching such determination, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, such doctrine is not applicable, and it must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a compensable rating for perforation of the tympanic membrane of the left ear The Veteran seeks a compensable rating for his perforation of the tympanic membrane of the left ear. The Veteran is currently rated at 0 percent pursuant to DC 6211, perforation of the tympanic membrane. The currently assigned 0 percent disability rating is the only rating available under DC 6211. In an April 2009 otolaryngology consult, the examiner reported that the Veteran’s left ear has an area of old perforation posteriorly, that healed with a scar, and he presented with low grade granular myringitis present, and the eardrum is thickened preventing view into the middle ear. In a September 2016 VA examination, the Veteran was found to not have signs or symptoms attributable to chronic ear infections, inflammation, or cholesteatoma. The examiner indicated that the Veteran had no residuals from his ear surgery in 2010, and that his tympanic membrane was normal. During a February 2018 VA examination, the examiner reported that there is no increase in disability severity, and the left tympanic membrane is intact, and there is evidence of a healed tympanic membrane perforation. The examiner also noted the Veteran underwent a left tympanomastoidectomy for cholesteatoma in 2010, and that the February 2018 VNG showed his left ear was negative for Valsalva. In a September 2020 primary care note, the examiner noted seeing scarring, deformity of the left tympanic membrane, but no obvious perforation. Based on the evidence, the records show the Veteran’s perforation of tympanic membrane of the left ear does not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. In his February 2018 VA examination, the examiner reported his disability had no increase in severity. The Veteran has described no impairment specific to the tympanic membrane perforation that would present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. The Board finds that referral for consideration of an extraschedular rating is not warranted. See 38 C.F.R. § 3.321(b). As the Veteran’s perforation of tympanic membrane of the left ear is already assigned the maximum schedular rating, and there is no legal basis upon which to award a higher schedular evaluation under DC 6211. The Board finds that the VA examinations are competent and probative, and therefore, the preponderance of the evidence is against the Veteran’s claim, and entitlement to a compensable rating for perforation of the tympanic membrane of the left ear is not warranted, and, therefore, denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 8, 2014, is remanded. The Veteran seeks entitlement to TDIU prior to April 8, 2014. In a November 2018 Board remand, the Board found the issue of TDIU inextricably intertwined with the above issues, and therefore, found the issue of TDIU to be held in abeyance pending the development and readjudication of the other claims on appeal. In July 2018, the RO requested an administrative review for TDIU from the VA’s Director of Compensation Service for an advisory opinion concerning extraschedular entitlement to individual unemployability. The Director complied and issued a review on August 2, 2018. This review determined that the Veteran was not entitled to individual unemployability benefits prior to April 8, 2014. However, this review failed to meet the standards set forth in Kuppamala v. McDonald, 27 Vet. App. 447, 455-456 (2015) (The Director must comply with the same requirements as the RO that will implement the decision and provide a state or reasons for the decision and a summary of the evidence considered) and Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (When determining whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the relevant factors). The Director did not adequately discuss the non-economic factors with respect to “substantially gainful employment,” and therefore, a remand is necessary. The matter is REMANDED for the following action: Refer the Veteran’s claim for TDIU prior to April 8, 2014, again, to VA’s Director of Compensation Service for extraschedular consideration. The referral should include a full statement of the Veteran’s service-connected disabilities, as well as his employment, education, medical histories, and a discussion of the non-economic factors with respect to substantially gainful employment. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Doerfler, 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.