Citation Nr: 21024841 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 16-27 670 DATE: April 26, 2021 ORDER Service connection for left ear hearing loss is denied. A compensable rating for right ear hearing loss is denied. A rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of left ear hearing loss for VA compensation purposes. 2. The Veteran’s right ear hearing loss is manifested by no worse than Level I hearing loss. 3. Throughout the period on appeal, the Veteran’s GERD has been characterized by pyrosis and reflux. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for a compensable rating for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, 4.86. 3. The criteria for a rating in excess of 10 percent rating for GERD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.114, DC 7346. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 2010 to September 2014. These matters come before the Board of Veterans’ Appeals (Board) from a May 2015 rating decision. Service Connection Under the relevant laws and regulations, 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. Generally, the evidence must show the existence of (1) a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if the disease manifests to a compensable degree within one year of separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). Left Ear Hearing Loss 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 Hertz (Hz) is 40 decibels (dB) or greater, or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hz are 26 dB or greater, or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. 38 C.F.R. § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal limits on audiological testing at separation from service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Rather, when audiological test results at a Veteran’s separation from service do not meet the requirements of 38 C.F.R. § 3.385, a Veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). Where the requirements for hearing loss disability pursuant to 38 C.F.R. § 3.385 are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385. Hensley, 5 Vet. App. at 155. If the record shows (a) acoustic trauma due to significant noise exposure in service and audiometric test results reflect an upward shift in tested thresholds while in service, though still not meeting the requirements for “disability” under 38 C.F.R. § 3.385, and (b) post-service audiometric testing produces findings which meet the requirements of 38 C.F.R. § 3.385; then the rating authorities must consider whether there is a medically sound basis to attribute the post service findings to the injury in service, or whether these findings are more properly attributable to intervening causes. Id. at 159. The Board has reviewed the evidence of record and finds that service connection is not warranted for the Veteran’s left ear hearing loss. As a preliminary matter, the Board concedes that the Veteran was exposed to significant noise during service. Specifically, in the May 2015 rating decision, the AOJ determined that the Veteran was exposed to acoustic trauma from weapon fire as an infantryman. Therefore, the remaining matter in contention is whether the Veteran has left ear hearing loss for VA compensation purposes. First, the service treatment records (STRs) do not exhibit a diagnosis of left ear hearing loss for VA compensation purposes. During the June 2010 entrance examination there are no indications of hearing loss; however, in February 2014 STRs the Veteran complained of difficulty hearing over background noise. On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 10 0 40 LEFT 5 0 5 0 5 The Veteran was diagnosed as having mild sensorineural hearing loss in the left ear and mild-to-moderate sensorineural hearing loss in the right ear. The audiological evaluation does not demonstrate that the Veteran has left ear hearing loss for VA compensation purposes as auditory thresholds for at least three frequencies were not greater than 26 dB or greater than 40 dB in one frequency. Next, in April 2015 the Veteran underwent an in-person VA examination regarding hearing loss. The examiner reviewed the Veteran’s military occupational specialty (MOS) and history of in-service noise exposure. The examiner conceded that the Veteran was exposed to significant acoustic trauma during service due to routine weapon fire as an infantryman. The speech discrimination test revealed a speech recognition ability of 100 percent in both ears. On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 10 50 LEFT 10 10 20 10 20 The examiner found that the Veteran has right ear hearing loss for VA compensation purposes with one frequency greater than 40 dB. Further, the VA examiner found that the Veteran does not have left hearing loss for VA compensation purposes as auditory thresholds for at least three frequencies were not greater than 26 dB or greater than 40 dB in one frequency. In June 2015, the Veteran submitted private records regarding his claim of service connection for hearing loss. The Board notes that the Maryland CNC speech audiometry test was not administered during this examination, as required for a full and adequate examination under 38 C.F.R. § 4.85(a). On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 10 50 LEFT 10 10 15 10 15 The audiological evaluation demonstrates that the Veteran has right ear hearing loss for VA compensation purposes with one frequency greater than 40 dB. Additionally, the audiological evaluation does not demonstrate that the Veteran has left hearing loss for VA compensation purposes as auditory thresholds for at least three frequencies were not greater than 26 dB or greater than 40 dB in one frequency. Further, the Veteran underwent a second in-person VA examination in August 2016 regarding hearing loss. The speech discrimination test revealed a speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 30 25 50 LEFT 15 20 20 15 20 The examiner found that the Veteran has right ear hearing loss for VA compensation purposes with one frequency greater than 40 dB. Further, the VA examiner found that the Veteran does not have left hearing loss for VA compensation purposes as auditory thresholds for at least three frequencies were not greater than 26 dB or greater than 40 dB in one frequency. Therefore, the Board finds that the audiological testing of record shows that the Veteran does not have a current left ear hearing loss disability for VA purposes, and, as such, there can be no valid claim for service connection for left ear hearing loss. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). Specifically, because the Veteran’s auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, 4000 Hz is not 40 decibels or greater; his auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are not 26 decibels or greater; and his speech recognition scores using the Maryland CNC Test are not less than 94 percent, the Veteran’s claimed left ear hearing loss is not a disability for the purposes of applying the laws administered by VA. 38 C.F.R. § 3.385. Therefore, service connection for left ear hearing loss is not warranted. Accordingly, the Board concludes that the preponderance of the evidence is against the claim of service connection for left ear hearing loss, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Right Ear Hearing Loss In this case, the Veteran’s right ear hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, DC 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through Level XI, representing profound deafness. 38 C.F.R. § 4.85. Additionally, the schedule considers the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). An alternative rating method may be used when the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels (dB) or more, or when the pure tone threshold is 30 dB or less at 1,000 Hz and 70 dB or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Additionally, under 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation of I, subject to the provisions of § 3.383. After a review of the evidence of record, the Board finds that a compensable rating for bilateral hearing loss is not warranted. First, as noted above, in April 2015 the Veteran underwent an in-person VA examination regarding hearing loss. The speech discrimination test revealed a speech recognition ability of 100 percent in both ears. On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Hz (B-E) RIGHT 15 25 10 50 25 LEFT 10 20 10 20 15 Under 38 C.F.R. § 4.85, applying these values to Table VI, the Veteran exhibits Level I hearing loss in the right ear. Further, for the purposes of applying 38 C.F.R. § 4.85(f) to Table VII, the Board designates the non-service-connected left ear to have only, at most, Level I hearing loss. Therefore, when applying these levels to Table VII, a compensable rating for right hearing loss is not warranted. Further, as the puretone threshold at each of the four specified frequencies is not 55 dB or more, the Veteran’s right hearing loss cannot be evaluated based solely on the average decibel loss under 38 C.F.R. § 4.86. Therefore, the Board concludes that the findings of the April 2015 VA examination demonstrate that the Veteran’s right ear hearing loss is adequately contemplated by the noncompensable rating criteria. Regarding the June 2015 private audiological evaluation, as noted above, the Maryland CNC speech audiometry test was not administered during this examination, as required for a full and adequate examination under 38 C.F.R. § 4.85(a). On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Hz (B-E) RIGHT 15 25 10 50 25 LEFT 10 15 10 15 12.5 Under 38 C.F.R. § 4.85, applying these values to Table VI, the Veteran exhibits Level I hearing loss in the right ear, and the Board has designated the non-service-connected left ear to have only, at most, Level I hearing loss. Therefore, when applying these levels to Table VII, a compensable rating for right hearing loss is not warranted. Further, as the puretone threshold at each of the four specified frequencies is not 55 dB or more, the Veteran’s right hearing loss cannot be evaluated based solely on the average decibel loss under 38 C.F.R. § 4.86. Moreover, the private medical records did not include a speech recognition test using the Maryland CNC Test as required by 38 C.F.R. § 3.385. Thus, although the June 2015 private records demonstrate that the Veteran’s right ear hearing loss is adequately contemplated by the noncompensable rating criteria, these records are ultimately insufficient to properly assess the severity of the Veteran’s right hearing loss. Lastly, in the August 2016 VA examination regarding hearing loss, the speech discrimination test revealed a speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. On the audiological evaluation, his puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average Hz (B-E) RIGHT 20 30 25 50 31.25 LEFT 20 20 15 20 18.75 Under 38 C.F.R. § 4.85, applying these values to Table VI, the Veteran exhibits Level I hearing loss in the right ear, and the Board has designated the non-service-connected left ear to have only, at most, Level I hearing loss. Therefore, when applying these levels to Table VII, a compensable rating for right hearing loss is not warranted. Further, as the puretone threshold at each of the four specified frequencies is not 55 dB or more, the Veteran’s right hearing loss cannot be evaluated based solely on the average decibel loss under 38 C.F.R. § 4.86. Therefore, the Board concludes that the findings of the August 2016 VA examination demonstrate that the Veteran’s right ear hearing loss is adequately contemplated by the noncompensable rating criteria. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for a compensable rating for right ear hearing loss and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. GERD Ratings regarding the digestive system disabilities are assigned under DCs 7200-7354. 38 C.F.R. § 4.114. These DCs are not combined with each other; rather, a single disability rating is assigned under the DC that reflects the Veteran’s predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The evidentiary record reflects that the Veteran’s predominant disability is GERD. GERD is not among the listed disorders in the Rating Schedule; however, GERD is most closely analogous to a hiatal hernia in terms of symptomatology and resulting disability picture. Thus, the Veteran’s condition may be rated by analogy under DC 7346 for a hiatal hernia. 38 C.F.R. § 4.114. The Veteran is presently assigned a 10 percent under DC 7346 rating for GERD. Under DC 7346 a rating is assigned when the evidence demonstrates: • two or more of the symptoms for the 30 percent evaluation of less severity (10 percent); • persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health (30 percent); or • symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health (60 percent maximum). 38 C.F.R. § 4.114, DC 7346. The Board has reviewed the evidence of record and finds that a rating in excess of 10 percent is not warranted for the Veteran’s GERD. In April 2015, the Veteran underwent in-person VA examinations regarding GERD and other stomach disabilities. The Veteran reported that during service he began to experience indigestion and was diagnosed as having reflux and H. pylori. Further, the Veteran stated that he underwent two courses of treatment for H. plyori but that he still experiences reflux. The examiner documented that the Veteran's current symptoms include pyrosis and reflux. The examiner documented that the Veteran uses daily medication to manage these symptoms. The examiner did not indicate that the Veteran's symptoms include epigastric distress, dysphagia, regurgitation, vomiting, material weight loss, hematemesis, melena, anemia, or substernal, arm, or shoulder pain. Lastly, the examiner opined that GERD does not have a functional impact on the Veteran’s ability to work. In the May 2015 notice of disagreement, the Veteran stated that he experiences regurgitation and shoulder pain due to GERD. Subsequently, in August 2016, the Veteran was afforded additional in-person VA examinations regarding the current severity of his GERD and other stomach disabilities. The Veteran stated that his GERD symptoms first began during service. The Veteran stated that he was diagnosed as having H. pylori and underwent treatment but that he still experiences reflux. The examiner documented that the Veteran’s current symptoms include pyrosis and reflux. The examiner documented that the Veteran uses daily medication to manage these symptoms. The examiner did not indicate that the Veteran’s symptoms include epigastric distress, dysphagia, regurgitation, vomiting, material weight loss, hematemesis, melena, anemia, or substernal, arm, or shoulder pain. Lastly, the examiner opined that GERD does not have a functional impact on the Veteran’s ability to work. Subsequently, in the October 2016 supplemental statement of the case (SSOC), the AOJ stated that although heartburn and reflux both fall under pyrosis, for rating assignment purposes the AOJ considered them as separate symptoms as it is more advantageous to the Veteran. Thus, the Veteran’s 10 percent rating for GERD was confirmed and continued. Additionally, the Board has reviewed the Veteran's medical records, and September 2015 VA treatment records indicate that the Veteran’s symptoms related to GERD are stable when taking medication. Further, the records indicate that the Veteran does not experience abdominal pain, melena, or hematemesis. The Board finds the conclusions of the April 2015 and August 2016 VA examiners to be of highly probative value. First, the examiners specifically documented that the Veteran’s current symptoms included only pyrosis and reflux. Second, the examiners did not indicate that the Veteran’s symptoms include epigastric distress, dysphagia, regurgitation, vomiting, material weight loss, hematemesis, melena, anemia, or substernal, arm, or shoulder pain. Further, the Veteran’s VA treatment records also do not indicate that he experiences any of these symptoms. As noted above, the Veteran’s GERD is rated analogously as a hiatal hernia, and when rating analogously the Board may liberally apply the rating criteria if the evidence more closely approximates a rating of greater severity despite not strictly meeting the rating criteria. See Stankevich v. Nicholson, 19 Vet. App. 470, 472-73 (2006). The Board recognizes that, under a strict application of the rating criteria, the Veteran only experiences one symptom, pyrosis. However, the Board finds, similar to the conclusion of the October 2016 SSOC, that the Veteran’s symptoms of heartburn and reflux should be interpreted as two separate symptoms because both the April 2015 and August 2016 VA examiners documented these symptoms separately, and also because such an interpretation properly considers the Veteran’s full disability picture given that his GERD is rated analogously. Therefore, the Board finds that Veteran’s GERD is most adequately contemplated by the 10 percent rating criteria with two symptoms of the 30 percent evaluation of less severity. As the evidence does not show persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health (30 percent); or symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health (60 percent maximum), the Board finds the criteria for a higher rating are not met. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for GERD, and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the appeal is denied. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.