Citation Nr: 21023777 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-10 229 DATE: April 21, 2021 ORDER Entitlement to a temporary total rating due to a service-connected disability requiring convalescence following the June 7, 2013 surgery, is denied. New and material evidence has been received reopen a claim for service connection for hearing loss, right ear. Entitlement for service connection for hearing loss, right ear, is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that, following the June 7, 2013 left ear surgery, the Veteran did not require convalescence due to severe post-operative residuals. 2. New and material evidence has been received to reopen the claim of service connection for right ear hearing loss. 3. The Veteran has not had right ear hearing loss as defined by VA at any time since filing his claim for compensation for hearing loss. CONCLUSIONS OF LAW 1. The criteria for entitlement to a temporary total disability rating based upon convalescence for surgical treatment for an ear disability on June 7, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.29, 4.30. 2. New and material evidence has been received to reopen the claim for entitlement to service connection for right ear hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1984 to June 1995. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2021. Temporary total rating The Veteran asserts that he is entitled to a temporary total evaluation for convalescence following a left ear surgery on June 7, 2013. The Veteran is service connected for bilateral tinnitus from April 26, 2004, hearing loss, left ear associated with chronic suppurative otitis media with cholesteatoma, left ear, from July 12, 2013, and chronic suppurative otitis media with cholesteatoma, left ear, from July 12, 2013. A total disability rating (100 percent) will be assigned without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement to a temporary total convalescence rating is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post-operative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of a one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). This regulation only authorizes the assignment of a disability rating and payment of compensation for service-connected disabilities. The United States Court of Appeals for Veterans Claims (Court) has defined convalescence as "the stage of recovery following an attack of disease, a surgical operation, or an injury and recovery as the act of regaining or returning toward a normal or healthy state." Felden v. West, 11 Vet. App. 427, 430 (1998). The Veteran underwent a left radical modified mastoid tympanoplasty with ossicular chain reconstruction (OCR) and left pressure equalization (PE) tube placement on June 7, 2013. The Veteran had a postoperative visit on June 24, 2013. The Veteran noticed blood tinged otorrhea from his left ear with pain. He denied subjective changes in hearing. The Veteran also reported some imbalance after getting out of bed. The Veteran had gauze removed with blood, and malodorous yellow otorrhea was suctioned. At a July 2, 2013 postoperative visit, the Veteran denied subjective changes to his hearing. He reported intermittent otalgia to the left ear with sharp shooting pain that could occur multiple times a day. The Veteran reported moderate otorrhea that was described as predominantly clear with a hint of red. The Veteran also reported light headedness after standing up for three minutes. He denied nausea, vomiting, or fever. The physician noted bloody packing in the mastoid bowl with a patent T-tube present in the anteroinferior quadrant. The Veteran reported to his surgeon on July 19, 2013 for a postoperative visit. The Veteran reported left blood-tinged otorrhea and muffled hearing. The Veteran was noted as taking Ciprodex. The Veteran reported that his hearing improved, and his tinnitus remained present. The prior lightheadedness and imbalance recurred in the prior week. Head movements triggered dizziness, and the Veteran also noticed headaches without visual changes, hyperacusis, or photophobia. The Veteran reported for a postoperative visit on July 24, 2013. The Veteran demonstrated left mixed hearing loss and complained of lightheadedness and imbalance that was exacerbated by head movements. The Veteran also reported headache and was prescribed Medrol Dosepak. The left muffled hearing improved. The Veteran reported improvement with positionally induced dizziness but had some left otorrhea. A small amount of whiteish otorrhea was present and suctioned. A small patch of exposed bone located inferiorly was also present. At an August 13, 2013 follow up appointment, the Veteran reported fluctuation in his hearing in the left ear with mild amount of yellow odorless otorrhea. The Veteran was noted as having a small patch of exposed bone located inferiorly which was slowly closing. The Veteran also reported left tinnitus had been more noticeable when quiet since the surgery with frequent otalgia of the left ear. The Veteran denied dizziness. The Veteran reported for another postoperative visit on September 24, 2013. The Veteran was noted as having a small patch of exposed bone located inferiorly which was slowly closing. A hearing aid had been ordered. The Veteran denied subjective changes in hearing and had been keeping his left ear dry. The Veteran continued to have ear drainage at night and reported yellow crusty discharge in the morning. The Veteran also reported some dizziness at night. Additionally, the Veteran reported left sided severe headaches. The Board acknowledges that the Veteran continued to experience pain, dizziness, headaches, hearing loss, discharge, and an unhealed surgical wound for the maximum convalescence benefit of three months following the outpatient surgery. That said, there is no evidence suggesting that at least one month of post-operative convalescence was necessitated per se, and the remaining criteria for a temporary total rating (e.g., severe surgical residuals, immobilization by cast) are not applicable here. Accordingly, the preponderance of the evidence is against the claim, and the claim must be denied. New and material evidence In this case, the Veteran did not submit a Notice of Disagreement (NOD) in response to an August 2004 rating decision denying service connection for bilateral hearing loss. 38 U.S.C. § 7105. The Veteran submitted private records dated July 2013. A note within those records reveal “sensory hearing loss unilateral right ear.” This evidence is new to the record, relates to previously unestablished facts to support the claims, and raises a reasonable possibility of substantiating the claims. 38 C.F.R. § 3.156(a). Accordingly, the claim for service connection for right ear hearing loss is reopened. Service connection 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, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Hearing loss and tinnitus are among the chronic disabilities for which a presumption of service connection is warranted if shown to a compensable degree withing a year following separation from service. 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310.  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, the benefit of the doubt is afforded to the claimant. The Veteran contends that he has hearing loss of the right ear due to his active duty service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the 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 Hz is 40 dB or greater: when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385; Hensley v. Brown, 5 Vet. App. 155 (1993). The Veteran was afforded a VA hearing loss examination in August 2015. The corresponding pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 25 20 15 LEFT 60 55 50 60 65 The Veteran’s Maryland CNC speech recognition score was 100 percent for both ears. The Veteran’s hearing in his right ear was found to be normal. No diagnosed disabilities were found for the Veteran’s right ear. The Veteran has submitted private medical records that contain audiometric data from 2004 to 2019. However, the private audiology exam results from his physician in the United States and Portugal do not show hearing impairment for VA purposes in the right ear. 38 C.F.R. § 3.385. In July 2020, the Veteran submitted a statement regarding his claim. The Veteran stated, “Service connection for hearing loss, right ear, was not nor, has ever been my claim, nor my issue.” The Veteran was correct in that he did not file a claim for right ear hearing loss. In July 2013, the Veteran filed his claim for left ear hearing loss, secondary to tinnitus, left chronic otitis media, secondary to tinnitus, and paragraph 30 benefits for left ear surgery resulting from tinnitus. However, the RO expanded the claim to include the Veteran’s right ear. Thus, the claim for right ear hearing loss is before the VA. The Veteran testified at a hearing in February 2021. The Veteran testified that his right ear hearing much better than the left, but it is not perfect. The Veteran also testified that he worked on a flight line with F-14 fighter aircraft and worked in the field with diesel trucks. The Veteran also stated that he has purchased hearing aids, which were not provided by the VA. The Veteran stated he was not provided with hearing protection. The Veteran’s wife stated that since the Veteran’s hearing was bad in his left ear, the right ear had to compensate for the deficiency, leading to degraded hearing in his right ear. The Board acknowledges that it must take into consideration all such lay evidence and statements. However, the Veteran and his spouse do not have the medical training or credentials to offer an opinion as to a diagnosis of hearing loss or its etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the medical evidence of record persuasive in this case. The multiple hearing exams, both private and VA, over an extended period of time show the lack of right ear hearing loss for VA purposes. Significantly, assessing hearing loss as a disability requires findings in accordance with 38 C.F.R. § 3.385, and the Veteran does not have the audiological training or credentials to assess whether his hearing loss has met these thresholds. In the new evidence received to reopen the hearing loss claim, the records showed a note that the Veteran had “sensory hearing loss unilateral right ear.” However, the medical evidence shows that the Veteran’s hearing in his right ear still does not meet the first element for service connection, a current disability. Considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection for right ear hearing loss is not warranted. Service treatment records are negative for complaints or findings of any right ear hearing loss disability, and the post-service medical evidence of record does not establish that the criteria for impaired right ear hearing under 38 C.F.R. § 3.385 are met. In the absence of proof of a present disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is denied. See 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hetman 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.