Citation Nr: 21015179 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-40 587 DATE: March 16, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss is denied. Entitlement to service connection for benign paroxysmal positional vertigo (BPPV), to include as secondary to bilateral hearing loss and tinnitus is denied. REMANDED Entitlement to service connection for eustachian tube dysfunction (ETD) is remanded. Entitlement to service connection for chronic nonsuppurative otitis media is remanded. FINDINGS OF FACT 1. The Veteran’s hearing has at worst been Level XI in the right ear and Level II in the left ear. 2. The Veteran’s benign paroxysmal positional vertigo (BPPV) was not present in service or for many years thereafter and is not otherwise etiologically related to service or any service-connected condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.14, 4.3, 4.40, 4.45, 4.7, 4.85, 4.86. 2. The criteria for entitlement to service connection for benign paroxysmal positional vertigo (BPPV), to include as secondary to bilateral hearing loss and tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably during peacetime in the United States Air Force, from July 1960 to April 1964. These matters originally come before the Board of Veterans’ Appeals (Board) from an April 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the issue for further development. The Veteran returned to the Board and again, the Board issued a remand in September 2020. The Veteran now returns to the Board in the current appeal. 1. Entitlement to an increased rating in excess of 10 percent for bilateral hearing loss The Veteran contends that he is entitled to a higher disability rating for bilateral hearing loss. From March 2015 to present, the Veteran is in receipt of a 10 percent disability rating for his bilateral hearing loss. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VI % of discrimination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Table VIA Numeric designation of hearing impairment based only on puretone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R.§ 4.85(e). (continued on next page) Table VII Percentage evaluation for hearing impairment (diagnostic code 6100) Poorer Ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I The Veteran had a VA hearing examination conducted in October 2015, and two non-VA audiological exams conducted in February 2016 and in June 2017. The two non-VA exams were determined to be conducted outside VA’s protocol and standards of best procedures and practice. The VA conducted two more hearing exams, one in December 2019, and the most recent in January 2021. There is no other audiological testing of record relevant to the period on appeal. The October 2015 hearing examination puretone threshold levels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 95 105+ 105+ 105+ 103 LEFT 10 25 35 50 30 The speech discrimination scores for the October test, determined using the Maryland CNC Test, showed a 0 percent in the right ear and a 96 percent in the left ear. Applying the October results to Table VI, the findings yield a numeric designation of Level XI in the right ear and Level I in the left ear. Entering the bilateral numeric designation of Level XI for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional hearing pattern is shown in the right ear, thus C.F.R. § 4.86 is applicable. The Veteran’s right ear is rated using Table VI, as it provides the higher numeral rating. The December 2019 hearing examination puretone threshold levels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 105 100 105+ 105+ 104 LEFT 15 35 45 60 39 The speech discrimination scores for the October test, determined using the Maryland CNC Test, showed a 0 percent in the right ear and a 96 percent in the left ear. Applying the October results to Table VI, the findings yield a numeric designation of Level XI in the right ear and Level I in the left ear. Entering the bilateral numeric designation of Level XI for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional hearing pattern is shown in the right ear, thus C.F.R. § 4.86 is applicable. The Veteran’s right ear is rated the same under both tables. Again, at the January 2021 examination, the Veteran had an exceptional hearing pattern in the right ear. Therefore, 38 C.F.R. § 4.86 was applied again. The right ear was rated using Table VI, as it provided the higher numeral rating. The January 2021 VA exam puretone threshold levels, in decibels were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 105+ 105+ 105+ 105+ 105+ LEFT 15 30 40 55 35 The speech discrimination scores from the examination, as determined by the Maryland CNC Test, showed a 0 percent in the right ear and a 90 percent in the left ear, respectively. Applying the results to Table VI, the findings yield a numeric designation of Level XI in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level XI for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional hearing pattern is shown and C.F.R. § 4.86 is properly applied. The audiological differences in the October 2015 examination and the January 2021 examination are noted. However, disability ratings for hearing loss for VA purposes are mechanical and the Board finds there is no hearing loss that allows the Veteran to receive a rating in excess of 10 percent. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s lay contentions that he has trouble hearing everything. The Veteran is competent to report difficulty with his hearing; however, as noted above, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim for a rating in excess of 10 percent for his bilateral hearing loss is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. Entitlement to service connection for benign paroxysmal positional vertigo (BPPV), to include as secondary to bilateral hearing loss and tinnitus The Veteran contends that in addition to bilateral hearing loss, he is due entitlement to service connection for his vertigo. He was diagnosed with benign paroxysmal positional vertigo (BPPV) in 2007 by his private provider. He has submitted disability benefits questionnaires (DBQs) completed by his private providers in September 2016 and June 2017 that further indicate his current condition of BPPV. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310 (b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In the September 2020 Board remand, the Board directed the examiner to opine whether it is at least as likely as not that the condition is causally related to the Veteran’s service or his service-connected hearing loss or tinnitus. The Veteran’s service treatment records (STRs) are silent about complaints of dizziness or vertigo while in-service. Additionally, the Veteran’s private treatment records don’t formally diagnose the Veteran with BPPV until 2007. While the private DBQs from September 2016 and June 2017 mention the Veteran’s BPPV, they do not offer a positive nexus opinion that connects the current condition to any in-service incurrence or any currently service-connected condition. In November 2020 the Veteran was provided with a VA examination, in accordance with the Board remand directives. The VA examiner opined that the condition of BPPV was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner also opined that the condition is less likely than not proximately due to or the result of the Veteran’s service-connected conditions of tinnitus and hearing loss. The examiner noted that tinnitus and hearing loss are not medically related to BPPV. Often, there is no known cause of benign paroxysmal positional vertigo. Finally, the examiner found no evidence that the BPPV was aggravated by either tinnitus or hearing loss. The fact that the Veteran first complained of dizziness and vertigo in 2007 made the VA examiner note that it is unlikely that the condition was first incurred in service. While the Veteran believes his benign paroxysmal positional vertigo is due to his hearing loss and tinnitus, he is not competent to provide an opinion as to the etiology of the condition in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. A preponderance of evidence is found to be against the claim and therefore, entitlement to service connection for benign paroxysmal positional vertigo is denied on the theory of direct and secondary service connection.38 C.F.R. §§ 3.303; 3.310; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for eustachian tube dysfunction (ETD) is remanded The Veteran’s private DBQs from September 2016 and June 2017 also indicate a diagnosis of eustachian tube dysfunction. The Veteran was officially diagnosed with eustachian tube dysfunction in 2006. The September 2020 Board remand directed the VA examiner to offer the Veteran an opinion on whether this condition was causally related to service or proximately due to or aggravated by a service-connected condition. In November 2020, the VA examiner opined that the Veteran’s eustachian tube dysfunction was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The examiner also opined that the eustachian tube dysfunction was not proximately due to or aggravated by the Veteran’s service-connected conditions of hearing loss and tinnitus. However, the Veteran reported his ear problems began in service, after taking a flight to Florida in an unpressurized aircraft in 1962. The STRs from 1962 specifically note the Veteran showing eustachian tube dysfunction after the in-service flight. The STRs also note that the eustachian tube was open and the Veteran’s hearing and pain subsided. However, the Veteran reported that the pain and drainage returned by the 1980s. The Board regrets the additional delay to resolving this specific issue. However, a remand is required for the VA examiner to review the STRs and in-service event that led to the eustachian tube issues that were reported while the Veteran was in-service. 2. Entitlement to service connection for chronic nonsuppurative otitis media is remanded. The private DBQs from September 2016 and June 2017 also indicated that the Veteran currently has chronic nonsuppurative otitis media. The VA examiner reports that the otitis media was officially diagnosed in 2005. In the September 2020 Board remand, the examiner was asked once again to review the records and conduct an exam to see whether the chronic nonsuppurative otitis media was causally related to an in-service injury, event or illness or if it was proximately due to or aggravated by a service-connected condition. The November 2020 VA examination once again determined that the otitis media ear condition was less likely than not due to an in-service injury, event or illness. The examiner also opined that the otitis media was not proximately due to or aggravated by the Veteran’s service-connected hearing loss and tinnitus. However, the examiner again did not address the Veteran’s in-service flight that is reportedly the cause of his serious ear conditions. The STRs specifically note that the Veteran suffered from recurring external otitis media and serious otitis media while in service. The Board must remand this issue to receive an adequate opinion from the VA examiner that specifically discusses the Veteran’s otitis media injury that was in-service as well as the specific in-service event that reportedly caused the injury. The matters are REMANDED for the following action: 1. Obtain an adequate VA opinion to determine the nature and etiology of the Veteran’s eustachian tube dysfunction and the chronic nonsuppurative otitis media. If the examiner believes an in-person examination is necessary, one should be scheduled with the Veteran. The examiner is requested to review all records associated with the claims file, including this remand, and to indicate the review of the file in the examination report. The examiner must obtain a full history from the Veteran. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Please indicate whether the Veteran’s ear conditions were at least as likely as not (50 percent or greater probability) due to or aggravated by an in-service injury, event, or disease. The examiner must fully discuss the Veteran’s in-service flight from Selfridge AFB, Michigan to Tyndall AFB, Florida in an unpressurized aircraft. The examiner must also discuss the conditions noted in the service treatment records after the flight. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must address any conflicting medical evidence of record. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, 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.