Citation Nr: 21015742 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 19-20 042 DATE: March 18, 2021 ORDER Service connection for vertigo or vestibular disorder is granted. An increased rating of 30 percent (but no higher), effective September 6, 2019, for the Veteran's service-connected bilateral hearing loss is granted. A compensable rating prior to September 6, 2019 for the Veteran's service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of doubt, the evidence of record establishes that the Veteran: 1) has a currently diagnosed vertigo or vestibular disorder (disequilibrium), (See January 2020 VA examination.); 2) the symptoms associated with this disorder, including dizziness and fainting spells, began during active duty military service and have continued and worsened since military service, (See November 1969 separation examination and January 2020 VA examination.); and 3) a causal link (“nexus”) is established based on the competent and credible statements by the Veteran and other medical evidence within the claims file that the disequilibrium is at least as likely as not related to the Veteran’s military service. The Board cannot afford any probative weight to the January 2020 negative causal link medical opinion within the January 2020 VA examination because the examiner’s opinion is not supported by an adequate rationale. 2. Affording the Veteran the benefit of doubt, the evidence of record, including a January 2020 VA audiological examination and the Veteran’s lay statements, establishes that the Veteran’s bilateral hearing loss disability was manifested by Level V hearing acuity in the right ear and Level VII hearing acuity in the left ear at least as early as September 6, 2019. This corresponds to a 30 percent disability rating. 3. At an October 2018 VA audiological examination, the Veteran’s bilateral hearing loss was manifested by Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. This corresponds to a noncompensable disability rating. CONCLUSIONS OF LAW 1. The criteria have been met for service connection for vertigo or vestibular disorder. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria have been met for an increased rating of 30 percent (but no higher), effective September 6, 2019, for the Veteran's service-connected bilateral hearing. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.321(b), 4.85, 4.86, Diagnostic Code 6100 3. The criteria have not been met for a compensable rating prior to September 6, 2019 for the Veteran's service-connected bilateral hearing loss. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.321(b), 3.400, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from February 1968 to January 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran, initially filed his claim for vertigo but has variously referred to his conditions as vertigo and vestibular disorder. See, e.g., September 2018 Claim for Benefits; July 2019 Substantive Appeal (VA Form 9). Therefore, the Board will broadly construe the claim for service connection for vertigo, as a claim for service connection for vertigo or a vestibular disorder. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (holding that the Board must consider any disability that “may reasonably be encompassed by” the description of the claim and symptoms or other submitted information.). In September 2019, the Board remanded the Veteran’s claims for further development. On remand, the RO granted a 30 percent rating for the Veteran’s bilateral hearing loss disability based on a January 2020 VA examination. However, as this is not a full grant of benefits, the issue is considered still on appeal and will be addressed in this decision. 1. Service connection for vertigo or vestibular disorder is granted. For the reasons outlined in more detail above in the Findings of Fact section, the appeal for service connection for vertigo or vestibular disorder, on the merits, is granted, making further discussion unnecessary. Increased Ratings and Effective Dates Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Consideration will be given to “staged ratings” since service connection was made effective. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings demonstrating distinct periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. Id. As part of an increased rating analysis, the effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations for hearing acuity assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with the Veteran’s average hearing threshold. The average pure tone threshold is derived from pure tone audiometric testing in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the hearing acuity level. Table VIA is used when speech discrimination tests are not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (defined in 38 C.F.R. § 4.86). One such pattern occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). Another occurs when the pure tone threshold at 1000 Hertz is 30 decibels or less and the pure tone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(b). Factual Background In a September 2018 VA 21-526EZ, Fully Developed Claim, the Veteran filed for an increased disability rating for his bilateral hearing loss. The Board notes this was not an appeal from an initial disability rating. During an October 2018 VA audiological examination, audiometry revealed that pure tone threshold loss, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 20 70 75 46 LEFT 20 35 75 80 52 Speech audiometry revealed speech recognition ability of 88 percent for the right ear and 92 percent in the left ear. Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed Level II for the right ear and Level I for the left ear. Additionally, the audiometry results do not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a noncompensable evaluation under Table VII. In a September 2019 appellate brief, the Veteran stated that his hearing loss had worsened since the October 2018 VA examination. In September 2019, the Board remanded the Veteran’s claim for a new VA audiological examination. During a January 2020 VA audiological examination, audiometry revealed that pure tone threshold loss, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 80 80 59 LEFT 35 40 80 80 59 Speech audiometry revealed speech recognition ability of 68 percent for the right ear and 52 percent in the left ear. Using the audiometry conducted in accordance with regulatory criteria, hearing acuity showed Level V for the right ear and Level VII for the left ear. Additionally, the audiometry results do not reflect any exceptional patterns of hearing impairment that would warrant evaluation using Table VIa. The hearing acuity shown from these audiometry results is equivalent to a 30 percent evaluation under Table VII. In an August 2020 rating decision, the RO granted an increased rating of 30 percent for the Veteran’s bilateral hearing loss, effective January 2, 2020. Analysis 2. An increased rating of 30 percent (but no higher), effective September 6, 2019, for the Veteran's service-connected bilateral hearing loss is granted. As noted above, the results of the January 2020 VA audiological examination reveal the appropriate rating currently for the Veteran’s hearing loss disability is 30 percent. However, the October 2018 VA audiological examination revealed that the appropriate rating was a non-compensable or zero (0) percent disability rating. Sometime between the two examinations, the Veteran’s hearing loss worsened significantly. Resolving all reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s competent and credible statements regarding the worsening of his hearing loss disability are sufficient to assign the 30 percent rating from the date VA received the September 2019 appellate brief. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (explaining that lay persons are qualified to report observable symptoms and medical events but not to provide medical opinions about complex medical questions). Therefore, the Board finds September 6, 2019 is the appropriate effective date of the 30 percent disability rating. The Board acknowledges that the Veteran has difficulty hearing and is wearing VA-issued hearing aids. However, rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical and lay evidence does not show the Veteran’s service-connected hearing loss disability has ever warranted a rating higher than 30 percent during the appeal period. As a result, a 30 percent rating (but no higher) is granted effective September 6, 2019. [CONTINUED ON NEXT PAGE] 3. A compensable rating prior to September 6, 2019 for the Veteran's service-connected bilateral hearing loss is denied. As noted above rating a hearing loss disability involves the mechanical application of rating criteria to the results of specified audiometric studies. The probative medical and lay evidence does not show the Veteran’s service-connected hearing loss disability has warranted a compensable rating prior to September 6, 2019. As a result, entitlement to a compensable rating for a bilateral hearing loss disability prior to September 6, 2019 must be denied. The Board regrets a more favorable decision could not be made in this Veteran’s case and thanks him for his honorable service. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Williams, 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.