Citation Nr: 21025196 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-35 485 DATE: April 27, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to service connection for migraine headaches is granted. REMANDED Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran demonstrated at worst level I hearing in the right ear and level I hearing in the left ear. 2. The evidence is at least evenly balanced as to whether the Veteran's migraine headaches began during active service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85 DC 6100. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for migraine headaches are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to January 1986, with additional service in the United States Navy Reserve (USNR). This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision from the Department of Veterans Affairs Regional Office (RO), which granted service connection for bilateral hearing loss and assigned a noncompensable rating. The RO also denied entitlement to service connection for migraine headaches. In July 2012 the Veteran filed a notice of disagreement (NOD) as to her migraine headaches and the initial rating assigned for her bilateral hearing loss. In May 2017 the RO issued a statement of the case (SOC) and in July 2017 the Veteran filed a substantive appeal (via VA Form 9). In March 2021 the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. Higher Initial Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Bilateral hearing loss Hearing loss is evaluated under 38 C.F.R. §§ 4.85, 4.86, DC 6100, Tables VI, VIA, and VII of VA’s rating schedule. The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. There is evidence of two audiometric examinations that occurred during the claim period in this case. On the June 2012 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 35 35 45 34 LEFT 20 35 45 45 34 Maryland CNC speech recognition scores were 96 in the right ear and 94 in the left ear. With application of the June 2012 test results to 38 C.F.R. § 4.85, Table VI, the Veteran’s right ear hearing loss is assigned a numeric designation of I, and the left ear hearing loss is assigned a numeric designation of I. With application of the June 2012 test results to Table VII, the Veteran’s bilateral hearing loss does not warrant a compensable rating. On the May 2017 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 45 40 45 41.25 LEFT 35 45 40 45 41.25 Maryland CNC speech recognition scores were 96 in the right ear and 96 in the left ear. With application of the May 2017 test results to 38 C.F.R. § 4.85, Table VI, the Veteran’s right ear hearing loss is assigned a numeric designation of I, and the left ear hearing loss is assigned a numeric designation of I. With application of the May 2017 test results to Table VII, the Veteran’s bilateral hearing loss does not warrant a compensable rating. In Martinak v. Nicholson, 21 Vet. App. 447 (2007) the Court of Veterans Appeals (Court) addressed a challenge to VA’s audiological testing practices, specifically, whether VA’s policy of conducting all audiometry testing of hearing-loss claimants in a sound-controlled room was valid. The Court also addressed the requirements for an adequate VA audiological examination report. The Court upheld VA’s policy of conducting audiometry testing in a sound-controlled room. The Court also held that, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The Veteran reported to the June 2012 and May 2017 VA examiners that the functional impact of his hearing loss included difficulty hearing people talk to her and muffled sounds. Therefore, the examination reports complied with Martinak. The Veteran contends that her current bilateral hearing loss presented a greater degree of impairment than currently assigned. The Veteran is competent to report her perceptions of diminished hearing and the Board find her credible in that regard. However, the assigned rating for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Therefore, given the mechanical nature of deriving schedular ratings for hearing loss, the Veteran is not entitled to an initial higher compensable rating for bilateral hearing loss. For the foregoing reasons, the preponderance of the evidence is against an initial compensable rating for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Migraine Headaches Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). An April 2017 VA examiner noted the Veteran has been diagnosed with migraine headaches as far back as 1983. A January 2001 private treatment note indicates that the Veteran experienced headaches on and off. Also, an October 2008 private treatment notes indicates that the Veteran experienced cluster headaches. Thus, a current disability has been demonstrated. An April 1995 service treatment record (STR) indicates that the Veteran experienced headaches. In an August 2017 letter, the Veteran’s spouse stated that she experienced headaches while stationed in Hawaii. Thus, the in-service injury or disease requirement is met. The remaining question is whether a nexus exists between the Veteran's current migraine headaches and her military service. In a May 2012 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that her migraine headaches occurred in and are caused by her service. At the March 2021 Board hearing the Veteran testified that her headaches began towards the end of her active duty and that she sought medical treatment shortly thereafter. The Veteran is competent and credible to describe the continuity of symptomatology for her migraine headaches as it existed from her time of service, and the progressive worsening of symptoms through the years. See Jandreau, 492 F.3d 1372 at 1377. An April 2017 VA examiner opined that the Veteran’s migraine headaches are less likely than not incurred in or caused by the claimed in-service injury, event or illness. The VA examiner explained that there are no consistent complaints of an ongoing problem and that she denied having an ongoing headache issue on the reports of medical history. Although the VA examiner explained that there were no consistent complaints of an ongoing problem, this fails to consider the Veteran's lay statements regarding continuous headache pain symptoms both in and since separation from service. As the April 2017 VA examiner's opinion was largely based on the absence of contemporaneous medical evidence, it is of little, if any probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, the VA examiner diagnosed migraine headaches as far back as 1983, suggesting that the migraine headaches had their onset in service. Given the Veteran’s credible lay statements, her spouse’s corroborating statement, the in-service complaint of headaches, and the flawed negative nexus opinion which in any event suggested the migraine headaches began in service, the evidence is at least evenly balanced as to whether the Veteran's migraine headaches had their onset service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for migraine headaches is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; 38 C.F.R. § 3.303(a) (“service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces”). REASONS FOR REMAND Entitlement to a TDIU is remanded. The issue of entitlement to TDIU was raised at the March 2021 Board hearing, where the Veteran reported she stopped working as a result of her bilateral hearing loss and arthritis, for which she is in receipt of service connection for multiple joints. In light of the Court's holding in Rice v. Shinseki, 22 Vet. App. 446 (2009), the Board has assumed jurisdiction of the issue of entitlement to a TDIU as part and parcel of the initial rating claim on appeal. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). The regulation also provides that for the purpose of one 60 percent disability or one 40 percent disability, the following will be considered one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, for example, orthopedic. The Veteran’s service-connected disabilities are currently rated a combined 80 percent. The Veteran's degenerative arthritis of left and right hand and of the spine, osteoarthritis of the left hip, and left and right knee tendonitis are each rated 10 percent and affect a single bodily system. Therefore, they will be considered as one disability for TDIU purposes and, as they combined to 40 percent or greater, the Veteran has met the threshold requirements set forth in 38 C.F.R. § 4.16(a) for a TDIU rating on a schedular basis. The agency of original jurisdiction (AOJ) has not adjudicated this matter and the Veteran has never submitted a formal claim for a TDIU (VA Form 21-8940) and should be asked to complete and submit this form upon remand. The matter is REMANDED for the following action: Develop and adjudicate the issue of entitlement to a TDIU, to include sending the Veteran a formal TDIU application form (VA Form 21-8940) if one has not yet been received. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.