Citation Nr: 21024702 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-17 903 DATE: April 23, 2021 ORDER Entitlement to a compensable disability rating for bilateral tympanoplasty and right myringoplasty with mixed hearing loss prior to August 3, 2015 is denied. Entitlement to an increased disability rating in excess of 10 percent for bilateral tympanoplasty and right myringoplasty with mixed hearing loss for the period from August 3, 2015 to August 9, 2016 is denied. Entitlement to a compensable disability rating for bilateral tympanoplasty and right myringoplasty with mixed hearing loss from August 9, 2016 to September 11, 2020 is denied. Entitlement to an increased disability evaluation in excess of 10 percent for bilateral tympanoplasty and right myringoplasty with mixed hearing loss from September 11, 2020 to present is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. For the period prior to August 3, 2015, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level III in the left ear. 2. For the period from August 3, 2015 to August 9, 2016, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level V in the left ear. 3. For the period from August 9, 2016 to September 11, 2020, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level III in the left ear. 4. For the period from September 11, 2020 to present, the Veteran’s bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level V in the left ear. CONCLUSIONS OF LAW 1. For the period prior to August 3, 2015, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. For the period from August 3, 2015 to August 9, 2016, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. For the period from August 9, 2016 to September 11, 2020, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 4. For the period from September 11, 2020 to present, the criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1982 to June 2002. These matters come before the Board of Veterans’ Appeals (Board) from November 2013 and July 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s claims in October 2018 in order to obtain: (i) missing audiograms from tests that occurred on September 14, 2012, March 27, 2015, August 3, 2015, November 20, 2015, and July 7, 2016; and (ii) a new VA examination assessing the nature and etiology of his currently diagnosed sleep apnea condition. Upon remand, all of the audiograms, except for the one conducted on July 7, 2016, were obtained and associated with the record. Regarding the July 7, 2016 audiogram, the RO determined that further attempts to obtain it would be futile. See 38 C.F.R. § 3.159 (c)(2); July 2019 Final Attempt Letter. The Veteran was also provided a new VA examination. Increased Ratings The Veteran contends that he is entitled to higher ratings as the symptomatology and problems associated with his service-connected hearing loss present a greater degree of impairment than is reflected by the currently and previously assigned evaluations. See February 2021 Appellate Brief. As the Veteran's disability ratings have been staged, the Board will address each staged rating time period separately and in turn. 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 Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the 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. An exceptional pattern of hearing impairment 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). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). 1. Entitlement to a compensable disability rating for bilateral tympanoplasty and right myringoplasty with mixed hearing loss prior to August 3, 2015 2. Entitlement to an increased disability rating in excess of 10 percent for bilateral tympanoplasty and right myringoplasty with mixed hearing loss for the period from August 3, 2015 to August 9, 2016 3. Entitlement to a compensable disability rating for bilateral tympanoplasty and right myringoplasty with mixed hearing loss from August 9, 2016 to September 11, 2020 4. Entitlement to an increased disability evaluation in excess of 10 percent for bilateral tympanoplasty and right myringoplasty with mixed hearing loss at more than 10 percent from September 11, 2020 to present At the outset, the Board notes that it may not consider symptoms associated with the Veteran’s other service-connected disabilities of the ears, namely his tinnitus, chronic otitis externa, and benign paroxysmal positional vertigo in rating his bilateral hearing loss disability as that would result in impermissible pyramiding. 38 C.F.R. § 4.14.   For the period prior to August 3, 2015 For this period on appeal, the Veteran’s disability is rated as noncompensable. The Veteran was afforded a September 2012 VA audiological examination. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Sept. 2012 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 45 55 75 54 96 LEFT 35 50 55 65 51 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded an October 2013 VA audiological examination. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Oct. 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 55 60 75 59 84 LEFT 35 55 65 70 56 88 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded a March 2015 VA audiological examination. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Mar. 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 60 70 75 61 88 LEFT 50 60 70 75 64 88 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the period prior to August 3, 2015 for the Veteran’s bilateral hearing loss is not warranted. Id. For the period from August 3, 2015 to August 9, 2016 For this period on appeal, the Veteran’s disability is rated as 10 percent disabling. The Veteran was afforded an August 2015 VA audiological examination. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Aug. 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 60 55 65 58 88 LEFT 55 65 75 75 68 84 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the Veteran’s left ear. Applying the results to Table VIA yields level V in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. The Veteran was afforded a November 2015 VA audiological examination. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Nov. 2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 50 65 70 65 63 88 LEFT 55 70 75 85 71 88 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the Veteran’s left ear. Applying the results to Table VIA yields level VI in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. The Veteran was afforded a June 2016 VA audiological examination. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: June 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 50 55 70 53 76 LEFT 55 65 65 70 64 96 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the Veteran’s left ear. Applying the results to Table VIA yields level V in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. Based on the evidence above, a rating in excess of 10 percent for the period from August 3, 2015 to August 9, 2016 for the Veteran’s bilateral hearing loss is not warranted. Id. For the period from August 9, 2016 to September 11, 2020 For this period on appeal, the Veteran’s disability is rated as noncompensable. The Veteran was afforded an August 2016 VA audiological examination. The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Aug. 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 50 55 60 48 84 LEFT 50 50 75 85 65 88 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A September 2017 private treatment record reveals moderate to profound mixed hearing loss in both ears. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s speech recognition score and pure tone thresholds, in decibels, were as follows: Sept. 2017 HERTZ 1000 2000 3000 4000 Avg NU-6 RIGHT 40 60 65 75 60 35 LEFT 50 65 75 85 69 45 Here, the Board notes that private audiology reports may be used as evidence if all the required information is present, and Board attorneys can convert findings to numerical charts. Speech discrimination tests listed as CID W-22 (Central Institute of the Deaf) or NU-6 (Northwestern University Auditory Test Number Six) are not If the speech recognition scores are not Maryland CNC, then the audiometric evaluation is not adequate for rating purposes under § 4.85(a). However, if the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when there is an exceptional pattern of hearing loss under § 4.86, then the Hertz decibel readings can be applied to Table VIA. See generally 38 C.F.R. § 4.85(a) (if there is an exceptional pattern of hearing loss, the requirements of § 4.85(a) regarding examination adequacy for rating purposes still apply.). The Board finds that as the September 2017 audiogram indicates that the NU-6 speech discrimination test was used rather than the requisite Maryland CNC, and as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown, the Board deems the September 2017 audiogram inadequate for purposes of rating the Veteran’s disability under § 4.85(a). A December 2017 VA examination reveals that the Veteran reported difficulty with carrying on conversations unless people talk very loudly. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Dec. 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 55 60 70 54 84 LEFT 50 50 70 85 64 84 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level III in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level III for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. A June 2018 private treatment record reveals speech recognition scores and pure tone thresholds, in decibels, as follows: June 2018 HERTZ 1000 2000 3000 4000 Avg NU-6 RIGHT 25 50 55 80 53 35 LEFT 45 60 80 85 68 45 The Board finds that as the June 2018 audiogram indicates that the NU-6 speech discrimination test was used rather than the requisite Maryland CNC, and as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown, the Board deems the June 2018 audiogram inadequate for purposes of rating the Veteran’s disability under § 4.85(a). Based on the evidence above, a compensable rating for the period from August 9, 2016 to September 11, 2020 for the Veteran’s bilateral hearing loss is not warranted. Id. For the period from September 11, 2020 to present… For this period on appeal, the Veteran’s disability is rated as 10 percent disabling. A September 2020 VA examination reveals that the Veteran reported having a hard time hearing conversations without the use of hearings aids, and that the volumes of his hearing aids have to be increased for him to listen to anything to include the TV and telephone. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: Sept. 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 45 65 80 56 80 LEFT 55 45 65 80 61 70 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level V in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown in either ear. Based on the evidence above, a rating in excess of 10 percent disabling for the period from September 11, 2020 to present for the Veteran’s bilateral hearing loss is not warranted. The Board notes that there are no other audiometric findings of record to be considered for this rating period on appeal. For all rating periods on appeal, the Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s lay testimony relative to his issues with hearing conversations, the TV, as well as telephone. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the ratings assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. Upon review of the record, the Board finds that a secondary service connection theory of entitlement was raised by the Veteran, which was not addressed upon remand by the April 2019 VA examiner. Specifically, per his April 2016 VA Form 9, the Veteran contends that his claimed for sleep apnea condition is due to his service-connected ear/hearing loss disability. The Veteran explained that Dr. T. wanted to clip uvula and inner throat plate to assist in breathing and aid in snoring. See Service Treatment Records (indicating that the Veteran was attended to/received treatment from Dr. T while in-service). The Veteran added that according to the American Sleep Association (ASA) sleep apnea has a direct relation to ear issues. Id. Accordingly, the Board finds that upon remand an addendum medical opinion must be obtained addressing whether the Veteran’s currently diagnosed sleep apnea condition is proximately due to and/or aggravated beyond its natural progression by his service-connected ear/hearing loss disability. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Associate with the Veteran’s claims file any outstanding VA treatment records since March 2021. 2. Obtain an addendum medical opinion from an appropriate clinician regarding whether the Veteran’s claimed for sleep apnea condition is at least as likely as not (50 percent probability or greater) proximately due to his service-connected ear/hearing loss disabilities, and/or aggravated beyond its natural progression by his service-connected ear/hearing loss disabilities. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.