Citation Nr: 21015332 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-28 302 DATE: March 17, 2021 ORDER Service connection for right ear hearing loss is denied. Prior to July 31, 2014, an initial rating in excess of 10 percent for asthma is denied From July 31, 2014, an initial rating in excess of 30 percent for asthma is denied. REMANDED The issue of entitlement to service connection for left ear hearing loss is remanded for additional development. FINDINGS OF FACT 1. The Veteran currently does not have right ear hearing loss to an extent recognized as a disability for VA purposes. 2. Prior to July 31, 2014, the Veteran’s asthma was manifested by pulmonary function test (PFT) results no worse than FEV-1 of 74 percent predicted pre-bronchodilator and 81 percent predicted post-bronchodilator. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication was not shown. 3. From July 31, 2014, the Veteran’s asthma is manifested by PFT results no worse than FEV-1 of 56- to70- percent predicted. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids is not shown. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309, 3.385. 2. Prior to July 31, 2014, the criteria for an initial rating in excess of 10 percent for asthma were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6602. 3. From July 31, 2014, the criteria for an initial rating in excess of 30 percent for asthma are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1998 to August 1999 and from January 2004 to January 2006. He had service in Operation Iraqi Freedom and was awarded a Global War on Terrorism Service Medal and Iraq Campaign Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In September 2018, the Board remanded the current issues on appeal for additional development. The Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and sensorineural hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015) (to establish service connection based on a continuity of symptoms under § 3.303(b), the evidence must show: (1) a condition “noted” during service; (2) post-service continuity of the same symptoms; and (3) a nexus between the present disability and the post-service symptoms); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). For purposes of applying the laws administered by VA, 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; when the auditory thresholds for at least three of the above frequencies 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. However, “when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a “disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. Therefore, the threshold question that must be addressed is whether the Veteran’s claimed right ear hearing loss qualifies as a disability, as defined by VA. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Veteran contends that service connection is warranted for bilateral hearing loss as a result of his duties in service. He attributes this condition to his in-service exposure to hazardous levels of noise. He reported that during service he was exposed to aircraft engine, rotors, and generator noise and that despite use of hearing protection, he could still hear the noise. He indicated that he noticed hearing loss in 2004. The Board finds that the Veteran’s military history and his contentions regarding in-service exposure to excessive levels of noise are consistent with the circumstances of his service. The Veteran’s July 1998 enlistment audiological examination showed puretone thresholds, in decibels, of: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 20 10 LEFT 0 0 10 0 10 The Veteran’s October 1998 audiological examination showed puretone thresholds, in decibels, of: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 20 10 LEFT -5 -5 5 5 5 The Veteran’s November 1999 audiological examination showed puretone thresholds, in decibels, of: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 20 10 LEFT 5 0 5 10 5 The Veteran’s April 2000 audiological examination showed puretone thresholds, in decibels, of: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 20 15 LEFT 0 0 0 5 5 The Veteran’s April 2001 audiological examination showed puretone thresholds, in decibels, of: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 20 10 LEFT 0 -5 5 5 5 The Veteran’s April 2002 audiological examination showed puretone thresholds, in decibels, of: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 0 20 10 LEFT 5 0 5 10 5 The Veteran’s May 2004 audiological examination showed puretone thresholds, in decibels, of: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 -5 10 5 LEFT 5 -5 10 10 10 The Veteran’s January 2005 audiological examination showed puretone thresholds, in decibels, of: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 -5 15 10 LEFT 0 -5 10 5 15 The Veteran’s December 2005 separation audiological examination showed puretone thresholds, in decibels, of: HERTZ 500 1000 2000 3000 4000 RIGHT 0 -5 0 5 5 LEFT 0 0 -5 10 5 The Veteran was afforded a VA hearing loss examination in August 2011. The Veteran’ s puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 15 15 LEFT 20 15 20 35 10 Speech audiometry results using the Maryland CNC were 100 percent for the right ear and 100 percent for the left ear. The VA examiner determined that the Veteran had normal hearing. Pursuant to the September 2018 remand, the Veteran was afforded a VA hearing loss examination in November 2019. The Veteran’ s puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 20 25 LEFT 15 15 15 25 15 Speech audiometry results using the Maryland CNC were 96 percent for the right ear and 94 percent for the left ear. The VA examiner determined that the Veteran had normal hearing in both ears. After review of the record, the Board finds that service connection for right ear hearing loss is not warranted. Although the November 2019 VA examination reflects that the Veteran has left ear hearing loss, as discussed in the remand section below, the most probative evidence indicates that the Veteran does not have a current right ear hearing loss disability as defined in 38 C.F.R. § 3.385. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a current bilateral hearing loss disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The objective results from the August 2011 and November 2019 VA audiological examinations did not show the requisite levels of pure-tone thresholds or speech discrimination scores to constitute a current right ear hearing loss disability. Hearing loss is considered a disability only when any of those above noted categories reach 40 decibels or higher, or at least three of those categories reach 26 decibels or greater. 38 C.F.R. § 3.385. The Veteran’s right ear hearing acuity remains below the criteria for a diagnosis of hearing loss. The speech discrimination scores remain above the threshold to be considered a disability. The Board has considered the decisions of the Court of Appeals for Veterans Claims in McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim) and Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (considering the application of McClain to a situation in which a disability manifests prior to the filing of a claim for VA benefits and then resolves before the claim is adjudicated). However, in this case, the Veteran has not been shown to have current right ear hearing loss disability as defined in 38 C.F.R. § 3.385 at any time during the appeal period, or prior to the filing of his claim. Without probative evidence of a current disability, the claim must be denied. See Degmetich v. Brown, 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); Romanowsky, 26 Vet. App. at 293; McClain, 21 Vet. App. at 321. The Board acknowledges the Veteran’s reports that he was subjected to in-service noise from aircraft and that he has experienced hearing loss since service. These statements, however, relate to the in-service and nexus elements of the Veteran’s claim of entitlement to service connection; they do not establish the presence of a current hearing loss disability. Thus, they are of little probative value. Finally, the Veteran’s reports of right ear hearing loss do not constitute competent evidence of a hearing loss disability, as the record does not reflect that he contains the requisite audiological expertise to diagnose such. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting a layperson’s general competence to testify as to symptoms but not to provide medical diagnosis). Medical expertise along with appropriate audiological testing is required to confirm the presence of right ear hearing loss. In sum, there is no medical evidence of record showing the presence of a right ear hearing loss disability for VA purposes; thus, the claim of entitlement to service connection for right ear hearing loss must be denied. The Board is grateful to the Veteran for his distinguished and honorable service, and regrets that a more favorable outcome could not be reached. In reaching the above conclusion, 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 the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Ratings Disability ratings are determined by applying the rating criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). By way of history, in the January 2013 rating decision, the Veteran was granted service connection for mild restrictive lung disease (claimed as asthma) effective July 7, 2011 with a 10 percent rating pursuant to Diagnostic Code 6602. Following his December 2013 notice of disagreement and July 2014 substantive appeal, the RO recharacterized the Veteran’s service-connected mild restrictive lung disease as COPD and granted a 30 percent rating under Diagnostic Code 6604, effective July 31, 2014. Following the September 2018 Board remand, the Veteran was afforded a VA examination in November 2019. The November 2019 examiner determined that the Veteran did not have COPD and that his PFT results were due to poor effort and obesity. The examiner noted mild asthma for which the Veteran does not take medication nor interferes with his usual occupation. The RO obtained another opinion in May 2020. The May 2020 VA examiner agreed with the November 2019 VA examiner regarding the improper diagnosis of COPD, determining that the Veteran did not have COPD or restrictive lung disease, only asthma. She explained that although asthma and COPD are obstructive diseases, the Veteran’s mild restrictive pattern in PFTs was not due to his pulmonary diagnoses but obesity. In a May 2020 rating decision, the RO continued the Veteran’s 30 percent rating but changed the diagnostic code back to Diagnostic Code 6602. The Board notes that in its May 2020 rating decision, the RO determined that the 30 percent rating under Diagnostic 6604 was assigned in error. The Board further acknowledges that the record has since been clarified that the Veteran is not service-connected for obstructive lung disease, and as such, Diagnostic Code 6604 (or any other Diagnostic Code applicable to obstructive lung disease) is not for application. Nevertheless, the Board will not disturb the 30 percent rating currently in effect for the prior characterization of the disability. Under Diagnostic Code 6602, a 10 percent rating is warranted if PFTs reveal an FEV-1 of 71 to 80 percent predicted, or; an FEV-1/FVC ratio of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for an FEV-1 of 56 to 70 percent predicted, or; an FEV-1/FVC ratio of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for an FEV-1 of 40 to 55 percent predicted, or; an FEV-1/FVC ratio of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for an FEV-1 of less than 40 percent predicted, or; an FEV-1/FVC ratio of less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. PFT results are generally reported before and after the administration of bronchodilator therapy. Although VA regulations instruct that post-bronchodilator results be used when considering PFT criteria for ratings under Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845, see 38 C.F.R. § 4.96(d)(4) (2017), there are no regulations identifying whether pre- or post-bronchodilator results should be used when determining disability ratings under Diagnostic Code 6602. Thus, as 38 C.F.R. § 4.96(d)(4) does not explicitly apply to Diagnostic Code 6602, the Board will use the PFT results that allow the most favorable disability rating. The evidence of record reflects that the Veteran was afforded a VA examination in August 2011. The examiner noted that due to his respiratory condition, the Veteran has a cough with purulent sputum and shortness of breath with allergies, dust, or smog. The Veteran reported that he did not experience a loss of appetite, hemoptysis, or daily cough with blood-tinge sputum and orthopnea. The Veteran denied asthma attacks but indicated that he contracts infections easily which require antibiotics twice per year, generally lasting for two weeks. The Veteran denied episodes of respiratory failure requiring respiratory assistance from a machine and did not require the usage of outpatient oxygen therapy. The Veteran’s PFT results reflected an FEV-1 of 74 percent predicted pre-bronchodilator and 81 percent predicted post-bronchodilator. The examiner noted that the Veteran’s FEV-1 results more accurately reflected the severity of the Veteran’s condition. Following his July 2014 substantive appeal, the Veteran was afforded another VA respiratory conditions examination in September 2014. The VA examiner determined that the Veteran’s respiratory condition required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids and that he had one course in the last 12 months. The examiner also determined that the Veteran’s respiratory condition required the use of intermittent inhalational bronchodilator therapy, intermittent inhalational anti-inflammatory medication, and intermittent use of a portable nebulizer. The Veteran’s respiratory condition did not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran had a history of asthmatic attacks with physician visits for required care of exacerbation less frequently than monthly. The Veteran did not have any episodes of respiratory failure. The Veteran did not have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension or chronic respiratory failure with carbon dioxide retention. The Veteran’s PFT results reflected an FEV-1 of 59 percent predicted pre-bronchodilator and 66 percent predicted post-bronchodilator. The examiner noted that the Veteran’s FEV-1 results most accurately reflected the current pulmonary function. The Veteran was afforded another VA respiratory conditions examination in November 2019. The VA examiner determined that the Veteran’s respiratory condition did not require the use of oral or parenteral corticosteroids, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran did not have a history of asthmatic attacks or physician visits for required care of exacerbation in the last 12 months. The Veteran’s PFT results reflected an FEV-1 of 63 percent predicted pre-bronchodilator and 79 percent predicted post-bronchodilator. The examiner determined that the Veteran’s PFT results do not reflect the Veteran’s current pulmonary function. Prior to July 31, 2014, the Veteran’s PFT results reflected an FEV-1 of 74 percent predicted pre-bronchodilator and 81 percent predicted post-bronchodilator. From July 31, 2014, the Veteran’s asthma PFT results reflected an FEV-1 of 59 percent predicted pre-bronchodilator and 66 percent predicted post-bronchodilator. The evidence of record, however, does not show that the Veteran’s asthma resulted in FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. Therefore, the Board finds that an initial rating of 10 percent is warranted prior to July 31, 2014 and a 30 percent rating thereafter, but no higher. REASONS FOR REMAND Left ear hearing loss Pursuant to the September 2018 remand, the Veteran was afforded a VA examination in November 2019. The November 2019 findings reflect that the Veteran’s left ear speech discrimination score met the thresholds to constitute a current left ear hearing loss disability under 38 C.F.R. § 3.385. Significantly, however, the November 2019 VA examiner determined that the Veteran did not have left ear hearing loss nor did she address the Veteran’s contentions that his hearing loss began during service, in 2004. Based on the foregoing deficiencies, the Board finds that the VA examiner’s opinion is inadequate, and another opinion is necessary prior to adjudication of the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). The matters are REMANDED for the following action: 1. Obtain a nexus opinion to address the current nature and severity of the Veteran’s left ear hearing loss. The Veteran’s claims file must be made available to the examiner. All diagnostic testing deemed to be necessary by the examiner should be accomplished. The examiner should provide the following opinions: (a.) Is it at least as likely as not (50 percent probability or greater) that any current hearing loss disability had its onset in or is related to any in-service disease, event, or injury, including conceded noise exposure during service? The examiner must address the Veteran’s contentions of diminished hearing since service. (b.) A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.