Citation Nr: 21015941 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 13-18 585 DATE: March 18, 2021 ORDER Service connection for a deviated septum is granted. An initial compensable disability rating for bilateral hearing loss is denied. REMANDED The following issues are remanded for further development: (1) entitlement to an initial disability rating greater than 10 percent prior to September 5, 2020, and greater than 50 percent thereafter, for bilateral plantar fasciitis; (2) entitlement to an initial disability rating greater than 20 percent for a left ankle lateral collateral ligament sprain (left ankle disability); (3) entitlement to an initial disability rating greater than 10 percent for a right ankle strain (right ankle disability); (4) entitlement to an initial disability rating greater than 10 percent for sinusitis; and (5) entitlement to an initial compensable rating prior to September 5, 2020, and greater than 10 percent thereafter, for allergic rhinitis. FINDINGS OF FACT 1. The Veteran’s deviated septum preexisted service. The evidence of record demonstrates that it underwent a permanent worsening during service. 2. For the entirety of the claim period, the Veteran’s bilateral hearing loss was no worse than Level I in both ears. When hearing loss is Level I in both ears, a noncompensable rating is assigned under Table VII. CONCLUSIONS OF LAW 1. The criteria for service connection for a deviated septum are met. 38 U.S.C. §§ 1110, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria for an initial compensable disability rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to May 2011. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran’s claims file currently resides with the St. Louis, Missouri RO. In his June 2013 substantive appeal, the Veteran requested a Board hearing. However, in June 2016, he withdrew his request. In April 2018, the Board issued a decision denying increased initial disability ratings for rosacea and a residual scar of the nose. The Board then remanded the issues of entitlement to service connection for a deviated septum and entitlement to increased initial disability ratings for a left ankle disability, a right ankle disability, bilateral plantar fasciitis, bilateral hearing loss, sinusitis, and allergic rhinitis. The case has now returned to the Board for appellate review. 1. Service Connection for a Deviated Septum As indicated above in the Conclusions of Law section, the Board finds that service connection for a deviated septum is warranted in the instant case. Thus, the Veteran’s claim is granted. In support of this determination, the Board first notes that on his August 1984 enlistment examination report, a physician noted that the Veteran had a deviated septum to the right side. For compensation purposes, a preexisting injury or disease will be considered to have been aggravated by service when there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut this presumption of aggravation. See 38 C.F.R. § 3.306(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Applying these principles to the instant case, the Board finds that the Veteran’s deviated septum clearly and unmistakably preexisted service. Turning to the evidence of the severity of the Veteran’s condition, at the time of his August 1984 enlistment examination, the examining physician noted that, despite the presence of a deviated septum, the Veteran had adequate airways bilaterally. However, a February 2008 in-service otorhinolaryngology note indicated that the Veteran had a near-complete obstruction of the right nasal passage. Similarly, during an April 2011 VA examination which occurred prior to the Veteran’s separation from service, the VA examiner stated that the Veteran had difficulty breathing through the right side of his nose. Thus, the Board concludes that the Veteran underwent a worsening of his deviated septum in service. As such, service connection will be granted, absent clear and unmistakable evidence that this worsening was not permanent in nature but, rather, a natural progression of the disability. In connection with his claim for service connection, the Veteran was provided a VA examination and medical opinion in September 2020. After physically examining the Veteran and reviewing his claims file, the September 2020 VA examiner opined that the Veteran’s deviated septum was not aggravated beyond its natural progression in service. In support of this conclusion, the examiner stated that the Veteran continued to experience symptoms attributable to his deviated septum in service, which was “typical.” Additionally, the examiner clarified that the Veteran experienced a “normal progression” of his disability and that there was “[n]o evidence” of a permanent aggravation. The Board finds the September 2020 VA medical opinion to be inadequate for adjudicative purposes and, thusly, of little probative value. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Specifically, the examiner did not address the results and findings of (1) the September 2008 otorhinolaryngology note, and (2) the April 2011 VA examination report and explain how those findings were indicative of a normal progression and not a permanent worsening. Accordingly, the Board concludes that it cannot find that clear and convincing evidence has been presented to rebut the presumption of aggravation in the instant case. As such, service connection for a deviated septum is granted. See 38 C.F.R. § 3.306. 2. Increased Rating for Bilateral Hearing Loss Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Additionally, 38 C.F.R. § 4.86 authorizes VA to evaluate defective hearing based upon puretone thresholds alone when a claimant demonstrates exceptional patterns of hearing impairment. However, in the instant case, the Veteran did not exhibit an exceptional pattern as defined by 38 C.F.R. § 4.86 at any point during the appeal period. Turning to the evidence of record, the Veteran was provided with 3 adequate VA audiological examinations during or relevant to the claim period. Firstly, during an April 2011 VA examination, the Veteran produced the following results during puretone threshold testing of the right ear: 5 decibels at 1000 and 2000 Hertz, and 60 decibels at 3000 and 4000 Hertz. Thus, the average hearing threshold level for the right ear was 32.5 decibels. Comparatively, for the left ear, the following results were obtained: 5 decibels at 1000 Hertz, 15 decibels at 2000 Hertz, 30 decibels at 3000 Hertz, and 45 decibels at 4000 Hertz. Accordingly, for the left ear, the average hearing threshold was 23.75 decibels. During the April 2011 VA examination, speech discrimination testing was also conducted using the Maryland CNC word list. The Veteran produced speech recognition scores of 96 percent for the right ear and 100 percent for the left ear. Applying these figures from the April 2011 VA examination to Table VI of 38 C.F.R. § 4.85 results in the assignment of Level I hearing impairment for both ears. Under Table VII of 38 C.F.R. § 4.85, when both ears are assigned Level I impairment, VA must assign a noncompensable rating. Accordingly, the results of the April 2011 VA examination indicated that the Veteran’s hearing loss was noncompensable for VA purposes. About two and a half years later, the Veteran was provided another VA audiological examination. Specifically, in October 2013, the Veteran produced the following puretone threshold results for the right ear: 15 decibels at 1000 Hertz, 20 decibels at 2000 Hertz, 75 decibels at 3000 Hertz, and 65 decibels at 4000 Hertz. Using these figures, the average hearing threshold level for the right ear was 43.75 decibels. Comparatively, for the left ear, the Veteran produced the following puretone threshold results: 10 decibels at 1000 Hertz, 20 decibels at 2000 Hertz, 45 decibels at 3000 Hertz, and 55 decibels at 4000 Hertz. Thus, for the left ear, the average hearing threshold was 32.5 decibels. Using the Maryland CNC word list, the Veteran produced speech recognition scores of 96 percent for the right ear and 98 percent for the left ear. Applying these puretone and speech recognition results to Table VI of 38 C.F.R. § 4.85 again results in the assignment of Level I hearing impairment for both ears. As both ears were Level I impaired, Table VII of 38 C.F.R. § 4.85 mandated the assignment of a noncompensable rating for the Veteran’s hearing loss. Thus, similar to the April 2011 VA examination results, the results of the October 2013 VA examination indicated that the Veteran’s hearing loss was noncompensable for VA purposes. Lastly, the Veteran was most recently provided another VA audiological examination in September 2020. On this occasion, the Veteran produced the following results for puretone threshold testing of the right ear: 25 decibels at 1000 Hertz, 20 decibels at 2000 Hertz, 65 decibels at 3000 Hertz, and 70 decibels at 4000 Hertz. Using these figures results in an average hearing threshold of 45 decibels for the right ear. Comparatively, for the left ear, the Veteran produced the following puretone threshold testing results: 20 decibels at 1000 Hertz, 40 decibels at 2000 Hertz, 50 decibels at 3000 Hertz, and 60 decibels at 4000 Hertz. Thus, the average hearing threshold was 42.5 decibels for the left ear. During speech recognition testing, the Veteran produced scores of 96 percent for the right ear and 100 percent for the left ear using the Maryland CNC word list. Applying these puretone and speech recognition results to Table VI of 38 C.F.R. § 4.85 again results in the assignment of Level I hearing impairment for both ears. As both ears were Level I impaired, Table VII of 38 C.F.R. § 4.85 mandated the assignment of a noncompensable rating for the Veteran’s hearing loss. Thus, similar to the prior VA examination results, the results of the September 2020 VA examination indicated that the Veteran’s hearing loss was noncompensable for VA purposes. Separate from the 3 relevant VA examinations summarized above, the Board notes that, in September 2013, the Veteran underwent audiometric testing at the Metro Ear, Nose, and Throat Group. However, the Board finds these September 2013 testing results inadequate for evaluative purposes as the speech discrimination scores noted in the report were obtained using the W-22 word list and not the Maryland CNC word list. See 38 C.F.R. § 4.85(a). Apart from this September 2013 record from the Metro Ear, Nose, and Throat Group, no other audiometric testing has been associated with the Veteran’s claims file. As none of the Veteran’s adequate VA examination reports indicate that an initial compensable rating for bilateral hearing loss is warranted pursuant to Table VII of 38 C.F.R. § 4.85, the Board denies the Veteran’s claim. REASONS FOR REMAND 1. Increased Initial Ratings for a Left Ankle Disability, a Right Ankle Disability, and Bilateral Plantar Fasciitis In an October 2014 treatment record from Dr. Coulson at St. Louis University, the Veteran reported bilateral ankle and foot symptoms beginning around the time of his retirement from military service. On this occasion, he reported to Dr. Coulson that he saw a podiatrist named Dr. Martin who had recommended surgery. Currently, the claims file contains a record of treatment from private provider Dr. Martin for September 17, 2013 only. As there are possibly outstanding records of private treatment relevant to the Veteran’s claims for increased initial ratings for the left ankle, right ankle, and plantar fasciitis, remand is required to allow VA to obtain authorization and request these records. 2. Increased Initial Ratings for Sinusitis and Allergic Rhinitis Similar to the issues remanded immediately above, the Board finds that remand of the issues of entitlement to increased initial ratings for sinusitis and allergic rhinitis is also warranted for possible outstanding private treatment records. Specifically, on September 13, 2013, Dr. West from Metro ENT Health indicated that the Veteran was under his care and that he was prescribing the Veteran Flonase nasal spray. Dr. West then stated that the Veteran was to return in 1 month for re-evaluation. Currently, this September 13, 2013 record is the only record from Dr. West associated with the Veteran’s claims file. As there may be additional records of treatment from Dr. West relevant to the Veteran’s sinusitis and allergic rhinitis increased rating claims, remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for podiatrist Dr. Martin from Premier Care Orthopedics and Sports Medicine. Make two requests for the authorized records from Dr. Martin, unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. West from Metro ENT Health. Make two requests for the authorized records from Dr. West, unless it is clear after the first request that a second request would be futile. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.S. Pettine, 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.