Citation Nr: 21022673 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-05 741 DATE: April 19, 2021 ORDER The application to reopen the previously denied claim of entitlement to service connection for a right ear hearing loss is granted. Entitlement to service connection for right ear hearing loss disability is denied. Entitlement to an initial disability evaluation in excess of 10 percent for chronic fatigue syndrome (CFS) for the period prior to October 27, 2016, is denied. Entitlement to an initial disability evaluation in excess of 20 percent for CFS for the period prior to August 17, 2020, is denied. Entitlement to an initial disability evaluation in excess of 40 percent for CFS for the period from August 17, 2020, forward, is denied. FINDINGS OF FACT 1. In an August 2011 decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a right ear hearing loss in that hearing loss for VA purposes was not demonstrated. The Veteran did not appeal the August 2011 denial and no relevant evidence was received within a year of the decision. Therefore, the August 2011 decision became final. 2. Evidence added to the record since the August 2011 rating decision includes additional audiometric evaluations in October 2016 and August 2020, as well as the Veteran’s testimony at a November 2019 videoconference hearing; this evidence relates to unestablished facts and raises a reasonable possibility of substantiating the claim for service connection for right ear hearing loss disability. 3. The Veteran experienced acoustic trauma during service, but he does not have hearing loss in the right ear that meets the VA criteria for being a disability. 4. Prior to October 27, 2016, the symptoms association with the Veteran’s chronic fatigue syndrome (CFS) were episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but present more than one-third of the time; but were not nearly constant and did not restrict routine daily activities by less than 25 percent of the pre-illness level; did not wax and wane, resulting in periods of incapacitation of at least two, but less than four weeks total duration per year; and were not constant, or nearly so, and refractory to therapy. 5. From October 27, 2016, to August 17, 2020, the symptoms associated with the Veteran’s CFS were episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but present more than one-third of the time; but were not nearly constant and did not restrict routine daily activities by less than 25 percent of the pre-illness level; did not wax and wane, resulting in periods of incapacitation of at least two, but less than four weeks total duration per year; and were not constant, or nearly so, and refractory to therapy. 6. From August 17, 2020, and thereafter, the symptoms associated with the Veteran’s CFS are manifested by no worse than signs and symptoms that were nearly constant and restricted routine daily activities to 50 to 75 percent of the pre-illness level, or with signs and symptoms that waxed and waned, without resulting periods of incapacitation. CONCLUSIONS OF LAW 1. The August 2011 rating decision which denied service connection for a right ear hearing loss disability is final. 38 U.S.C.A. § 7105 (2012). 2. New and material evidence having been received, the criteria for reopening the claim of entitlement to service connection for right ear hearing loss disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. The criteria for service connection for hearing loss disability in the right ear have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2020). 4. Prior to October 27, 2016, the criteria for an initial disability rating in excess of 10 percent for CFS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 6345 (2020). 5. From October 27, 2016, to August 17, 2020, the criteria for an initial disability rating in excess of 20 percent for CFS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 6345 (2020). 6. From August 17, 2020, the criteria for an initial disability rating in excess of 40 percent for CFS have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 6345 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to September 1990. In November 2019, the Veteran presented testimony before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In December 2019, the claims on appeal were remanded for development to include the obtainment of contemporaneous examinations. The case has now been returned to the Board for further appellate consideration. Historically, it is noted that when the matter of service connection for a right ear hearing loss disability was addressed at the video conference hearing in November 2019 and at the time that the claim was remanded by the Board in December 2019, the Board treated the matter on appeal as a service connection claim. Upon review of the relevant procedural history, the current decision has properly framed the matter as a new and material evidence claim. Upon its contemporaneous review of the claim file, the Board affirms this classification of the matter on appeal. Given the positive disposition herein with the reopening of the claim, such action is of no detrimental impact to the Veteran. For the reasons noted above, the request to reopen the claim of service connection for a right ear hearing loss disability has been granted. The reopened claim of entitlement to service connection for right ear hearing loss disability is addressed below. Service connection for right ear hearing loss disability. The Veteran previously sought service connection for bilateral hearing loss disability through an initial claim in 2011. This claim was denied via an August 2011 rating decision. That rating decision acknowledged that the Veteran’s left ear hearing impairment met the criteria for VA standards for hearing loss disability, but the right ear did not. Thus, service connection for left ear hearing loss disability was granted, and a noncompensable rating was assigned. Service connection was denied for right ear hearing loss disability. It is the Veteran’s assertion that service connection is warranted for right ear hearing loss. See, e.g., his November 2019 testimony. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (wartime), 1131 (peacetime) (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131 (2012); see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Impaired hearing will be considered a disability when, in pertinent part, the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or, when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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 (2020). 38 C.F.R. § 3.385 (2020) does not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service if there is sufficient evidence to demonstrate a relationship between the Veteran’s service and his current disability. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). 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 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The service treatment records (STRs) include audiometric examination testing results at enlistment and at discharge. Enlistment testing in March 1984 showed the following right ear decibel levels: Right 500 1000 2000 3000 4000 15 10 5 15 10 At time of discharge, the following right ear decibel levels were noted: Right 500 1000 2000 3000 4000 15 10 5 15 10 The first post-service audiometric examination was performed by VA in June 2011. On the authorized audiological evaluation, the Veteran gave a history of in-service noise exposure from air crafts on the flight line and in his work as a security policeman. Pure tone thresholds, in decibels, were as follows: Right 500 1000 2000 3000 4000 20 20 20 30 30 Upon VA audiometric (air conduction) testing in April 2015, the following right ear decibel levels were noted. Right 500 1000 2000 3000 4000 10 10 15 20 30 For the right ear, the average pure tone decibel loss was 18.75 and the speech discrimination score was 98 percent. The audiologist noted that there was no right ear diagnosis because there was no pathology to render such. Upon VA audiometric testing in November 2016, the Veteran again reported in-service noise exposure. Upon audiometric testing, the following right ear decibel levels were noted. Right 500 1000 2000 3000 4000 20 20 20 30 35 For the right ear, the average pure tone decibel loss was 26.25 and the speech discrimination score was 96 percent. The examiner noted that for the right ear, the current thresholds met clinical criteria for hearing loss, but did not meet VA standards for ratable hearing loss. As shown above, the Veteran has been reviewed by audiologists on numerous occasions throughout the appellate period. However, at no point has his claimed right ear hearing loss disability met the requirements for a hearing loss disability enumerated in 38 C.F.R. § 3.385 (2020). Absent probative evidence that the Veteran has right ear hearing loss within VA standards, there is no valid claim for entitlement to service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Full consideration has been given to the Veteran’s assertions. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case, the presence of a hearing loss disability for VA purposes, falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Although the Veteran is competent to report diminished hearing, he is not competent to report specific results of audiometric and word recognition testing, as required by 38 C.F.R. § 3.385, nor is there any indication he is competent to provide a diagnosis of SNHL, or that he received any special training or acquired medical expertise in evaluating hearing disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Thus, the Board finds the medical evidence of record, including audiometric and speech recognition testing, is of greater probative value than the Veteran’s lay statements. As the competent, credible medical evidence of record shows that the Veteran has not had a current diagnosis of a right ear disability as defined by regulation at any time during the current appeal, the preponderance of the evidence weighs against the claim and it must be denied. The Veteran is encouraged to reapply for service connection for left ear hearing loss if and when his 1) auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; 2) or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or 3) when speech recognition scores using the Maryland CNC Test are less than 94 percent. Entitlement to a disability evaluation in excess of 10 percent for CFS for the period from May 1, 2014, to October 27, 2016. Entitlement to a disability evaluation in excess of 20 percent for CFS for the period from October 27, 2016, to August 17, 2020. Entitlement to a disability evaluation in excess of 40 percent for CFS for the period from August 17, 2020, forward. The Veteran contends that increased ratings are warranted for his CFS for the periods as reflected above. See, e.g., his November 2019 testimony. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2020). The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1 (2020). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Where entitlement to compensation has already been established and an increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s fatigue is rated under DC 6354. Under DC 6354, a 10 percent rating is assigned for CFS which waxes and wanes but results in period of incapacitation of at least one but less than two weeks total duration per year; or for symptoms controlled by continuous medication. A 20 percent disability is assigned under this code for symptoms which are nearly constant and restrict daily activities by less than 25 percent of pre-illness level; or, which wax and wane, resulting in incapacitation of at least two but less than four weeks total duration per year. A 40 percent is assigned for symptoms which are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 percent rating is assigned for symptoms, which are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or; which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A 100 percent rating is assigned for symptoms which are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. For evaluation purposes, CFS will be considered incapacitating only while it requires bed rest and treatment by a physician. 38 C.F.R. § 4.88a, DC 6354, Note. Based on a review of the record, the Board finds that for the period prior to October 27, 2016, the Veteran’s fatigue does not warrant an initial disability rating in excess of 10 percent. Service connection for fatigue as secondary to service-connected multiple sclerosis (MS) was granted upon rating decision in January 2015. The Veteran’s medical records have been associated with the claim file. VA records dated in 2014 reflect reports of fatigue, particularly in the afternoon. The Veteran was on amantadine medication for his fatigue. The taking of medication for fatigue warrants a 10 percent disability rating for CFS for the period prior to October 27, 2016. A disability rating in excess of 10 percent is not warranted, however, as while symptoms appear constant, they did not restrict his routine daily activities to less than 50 percent of pre-illness level. When examined by VA on October 27, 2016, his fatigue was now affected by heat and physical activity. While medications were taken for CFS, his symptoms were not controlled by such. The examiner noted that debilitating fatigue had not reduced daily activity to less than 50 percent of pre-illness level. Symptoms included generalized muscle aches or weakness, headaches, and sleep disturbance. The heat made the fatigue worse. Cognitive impairments included poor attention and forgetfulness. His symptoms, however, did not result in periods of incapacitation; nor did his symptoms restrict routine daily activities as compared to the pre-illness level. The Veteran was fatigued by light physical activity. He was unable to stand or walk for long periods of time, and he could not use a ladder any longer. The increase of symptomatology associated with CFS for the period from October 27, 2016, is best represented by the currently assigned 20 percent disability rating in that the Veteran’s symptoms were nearly constant. There was no reported restriction, however, to his routine daily activities. The increase in symptoms arguable resulted in incapacitation of at least two but less than four weeks total duration per year. Therefore, the current 20 percent rating is correct, but a rating in excess of 20 percent is not warranted for this period in that his nearly constant symptoms did not restrict routine daily activities to 50 to 75 percent of the pre-illness level or result in periods of incapacitation of at least four but less than six weeks total duration per year. VA medical records dated in 2017 through 2020 reflect that the Veteran continued to take medication for his CFS. When examined by VA for CFS on August 17, 2020, the claims folder was reviewed by the examiner, and an in-person examination was conducted. It was noted that the Veteran continued to take medication for his fatigue, though it remained uncontrolled. He could “hardly” mow his lawn as he got “wabbly and shaky.” Acute onset of CFS was noted. The debilitating fatigue had reduced his daily activity level to less than 50 percent of pre-illness level for the past 6 months or longer. His symptoms continued to include generalized muscle aches or weakness, headaches, and sleep disturbance. Cognitive impairments continued to be inability to concentrate and forgetfulness. He had poor attention and had short term memory issues. Symptoms were nearly constant. Symptoms restricted daily activities from 50 to 75 percent of the pre-illness level. The increase of symptomatology associated with CFS for the period from August 27, 2020, is best represented by the currently assigned 40 percent disability rating in that the Veteran’s symptoms were nearly constant and had restricted his routine daily activities from 50 to 75 percent of the pre-illness level. A rating in excess of 40 percent is not warranted in that restriction of routine daily activities to less than 50 percent of the pre-illness level was not demonstrated. As the preponderance of the evidence is against the claim of an initial disability rating in excess of 10 percent prior to October 27, 2016, in excess of an initial disability rating in excess of 20 percent prior to August 17, 2020, and in excess of an initial disability rating of 40 percent thereafter, for the Veteran’s fatigue; the benefit of the doubt is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2020). E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.