Citation Nr: 21029711 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 20-07 470 DATE: May 14, 2021 ORDER Entitlement to service connection for recurrent tonsillitis, claimed as throat problems is granted. Entitlement to a disability rating for bilateral hearing loss of 10 percent, but no higher, from the initial date of the award of service connection to February 25, 2020, is granted. Entitlement to a disability rating of 30 percent but no higher, for bilateral hearing loss from February 25, 2020, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, recurrent tonsillitis occurred during active service and continued to the appeal period. 2. The Veteran's hearing loss disability manifested at worst to a level IV in left and right ears from the initial effective date for the grant of service connection. 3. The Veteran's hearing loss disability manifested at worst to a level VII in the right ear and level V in the left ear from February 25, 2020. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for recurrent tonsillitis, claimed as throat problems have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for entitlement to an increased disability rating for bilateral hearing loss to 10 percent, but no higher, prior to February 25, 2020, and to 30 percent, but no higher from that date have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. 3. The criteria for entitlement to an increased disability rating for bilateral hearing loss in excess of 30 percent from December 16, 2020 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1959 to May 1962. 1. Entitlement to service connection for recurrent tonsillitis, claimed as throat problems The Veteran contends that he developed tonsillitis and throat problems during active service that persist to the present. After a thorough review of the evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to service connection for recurrent tonsillitis is warranted. 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; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is currently diagnosed with recurrent tonsillitis which is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran has been diagnosed with recurrent tonsillitis during the appeal period, therefore he meets the first element for entitlement to service connection. See December 2020 VA examination. The Veteran's service treatment records (STRs) show treatment for red and swollen throat in May 1961. The Veteran's STRs show diagnosis of tonsillitis in January 1962 and again in March 1962. The Veteran was hospitalized for 19 days in March to April 1962 for acute tonsillitis that was treated with antibiotics. On the Veteran's April 1962 medical history at separation, he checked off a history of ear, nose, throat problems. On the associated medical report, there was no notation regarding a throat problem at separation. Accordingly, the Veteran meets the second element for entitlement to service connection. The Veteran submitted private medical records showing treatment for peritonsillar abscess in August 2017. The Veteran had been treated for tonsillar abscess on the right side, which was drained, and the Veteran was placed on antibiotics. The Veteran returned to the emergency room one week later with swelling in the right side of his throat at which point the abscess was drained again. The Veteran's STRs show diagnosis of tonsillitis in January 1962 with notation of possible right-side tonsillar abscess. The Veteran submitted a statement dated in January 2017, writing that during service, he had swelling in the jaw and he could not talk, eat, or sleep and he had pain associated with the condition. The Veteran stated that he was in quarantine for two weeks when he was treated with antibiotics and that he received "shots" twice a day after more than two weeks in the hospital, but he did not know the diagnosis. He goes on to say that about a year after leaving the Army, his tonsils began to "decay." He described "severe pain" for about 20 years. He stated that pain continues today and while not as severe, it is constant. The Veteran underwent a VA examination in December 2020 and the examiner diagnosed allergic rhinitis, aphonia, and recurrent tonsillitis. The examiner opined that the diagnosed conditions were not as least as likely as not related to an in-service injury, event, or disease, referencing that medical records showed 1960 acute tonsillitis, not chronic. The examiner noted that aphonia is not a chronic condition. In the associated medical report, the examiner recorded that the Veteran's recurrent tonsillitis in the military had onset in 1960 and he has had trouble swallowing since 2018 when the Veteran experienced multiple CVAs. Since July 2020, the Veteran had increasing difficulty with speech. The Board notes the above referenced August 2017 records showing treatment for peritonsillar abscess. Regarding the Veteran's assertions that he has had throat pain in service and since about one year after service separation, the Board finds that the Veteran is competent and credible to report the symptoms of throat pain and problems swallowing. See Charles v. Principi, 16 Vet. App. 370 (2002); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology that is not medical in nature); see also Layno, at 469-70 (finding lay testimony competent when it concerns features or symptoms of injury or illness); see also Caluza v. Brown, 7 Vet. App. 498 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The evidence that weighs against a finding of recurrent tonsillitis symptoms since service separation includes that the Veteran has not submitted medical evidence related to this complaint pertaining to the period between separation from service until the appeal period. The absence of post-service findings, diagnosis, or treatment until 2017 is one factor that tends to weigh against a finding of recurrent tonsillitis after service separation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). The Board will resolve reasonable doubt in favor of the Veteran in finding that the Veteran had tonsillitis in service and has experienced symptoms since service separation, including trouble swallowing and severe throat pain with evidence during the appeal period of treatment for peritonsillar abscess and diagnosis of recurrent tonsillitis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal for entitlement to service connection for recurrent tonsillitis is granted. 2. Entitlement to an increased disability rating for bilateral hearing loss The Veteran contends that his bilateral hearing loss disability warrants a higher evaluation than the initially assigned noncompensable rating. The Board notes that in January 2021, the AOJ granted an increase to 30 percent for bilateral hearing loss disability with an effective date of December 16, 2020. The Board finds that a higher disability evaluation for bilateral hearing loss from the initial effective date of entitlement to service connection at 10 percent, but no higher, is warranted, and a 30 percent disability rating, but no higher, is warranted from February 25, 2020. Disability evaluations are determined by evaluating the extent to which the claimant's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The method for rating a hearing loss disability depends in part on the results of the Maryland CNC speech recognition test, and in part on the results of the pure tone audiometric test at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 describes the sequence of steps that a VA adjudicator must use to apply the rating criteria for hearing loss disability. For the pure tone audiometric test, an average pure tone threshold is obtained by dividing the sum of these thresholds by four. After the average pure tone threshold is determined, Table VI of 38 C.F.R. § 4.85 is normally used to assign a Roman numeral hearing impairment designation based on a combination of the percent of speech discrimination and pure tone threshold average. After a Roman numeral hearing impairment designation has been assigned to each ear, Table VII of § 4.85 is used to assign the disability rating for bilateral hearing loss by combining the Roman numeral hearing impairment designations for both ears. Id. The Board notes that in the December 2020 VA examination for throat problems, the examiner reported that the Veteran has aphonia, which is the loss of ability to speak, and that it had been worsening since July 2020. This is pertinent because in the December 16, 2020 VA examination for hearing loss, the examiner marked the box denoting that the Veteran could not be tested using the Maryland CNC speech recognition evaluation because of (prepopulated option) "language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate." The examiner did not elaborate on the reason for choosing this box. The medical evidence will be presented in reverse chronological order due to the information from the December 2020 VA examinations. On the authorized audiological evaluation in December 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 30 70 90 95 LEFT 25 30 60 90 95 Speech audiometry as mentioned above was not tested. The average rating for the right ear of results for 1000 Hertz to 4000 Hertz was 71.25 and for the left ear was 68.75. The Veteran commented that he has trouble hearing his family and has to turn the television volume all the way up. As the Veteran was not tested with speech recognition scores, the table VIa can be used for puretone threshold only, which reveals a level VI in the right ear and level V in the left ear. According to Table VII, these designations indicate that a 20 percent disability rating is appropriate. However, the Board notes that the Veteran presents an exceptional pattern of hearing loss per 38 C.F.R. § 4.85(b), that is when the puretone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz, the rating specialist will determine the roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral, evaluating each ear separately. Here, the Veteran's right ear shows this exceptional pattern and therefore adding one Roman numeral to the table VIa designation of VI makes VII. According to table VII, combining a VII with a V, the Veteran meets the 30 percent level for bilateral hearing loss disability from December 16, 2020, the date of this VA audiological examination. The Veteran submitted private audiological testing results dated February 25, 2020 with puretone results as below. HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 80 95 105 LEFT 25 30 60 80 100 Speech audiometry was tested, but it is unclear whether it was the Maryland CNC evaluation. Regardless, as the Veteran has a history of CVA, Parkinson's, throat problems, and aphonia, and was noted on the December 2020 VA audiology examination as an inappropriate patient for speech discrimination scores, the puretone threshold scores will be used alone. The average rating for the right ear of results for 1000 Hertz to 4000 Hertz was 78.75 and for the left ear was 67.5. Using table VIa for puretone threshold only reveals a level VII in the right ear and level V in the left ear. According to Table VII, these designations indicate that a 30 percent disability rating is appropriate. The Board notes that the Veteran's results here are close, but do not reach the level that presents an exceptional pattern of hearing loss per 38 C.F.R. § 4.85(b), that is when the puretone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. Accordingly, a 30 percent disability evaluation for bilateral hearing loss would be appropriate from February 25, 2020 based on this analysis. On the authorized audiological evaluation in March 2017, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 55 75 90 LEFT 15 25 50 75 95 The Veteran was tested with speech recognition using the Maryland CNC test, but as above, the Board finds that reasonable doubt dictates that the December 2020 VA examination findings indicate that speech recognition may not have been appropriate for this Veteran. The average rating for the right ear of results for 1000 Hertz to 4000 Hertz was 58.75 and for the left ear was 61.25. Using table VIa for puretone threshold only reveals a level IV in the right ear and level IV in the left ear. According to Table VII, these designations indicate that a 10 percent disability rating is appropriate. The Board notes that the Veteran's results here are close, but do not reach the level that presents an exceptional pattern of hearing loss per 38 C.F.R. § 4.85(b), that is when the puretone threshold is 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. Accordingly, a 10 percent initial disability evaluation for bilateral hearing loss would be appropriate based on this analysis. The Board takes the Veteran's lay statements as credible and competent as to his own experiences regarding his hearing loss disability, that he has difficulty hearing his family and he has to turn the television volume all the way up. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). While the Veteran may believe that he is entitled to a higher evaluation for his service-connected hearing loss, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to demonstrate that he meets the threshold requirements for a higher evaluation under the rating schedule. The Board finds that the medical evidence of record supports a compensable initial disability evaluation of 10 percent, but no higher, for bilateral hearing loss disability, and a 30 percent disability evaluation, but no higher, from February 25, 2020. Accordingly, the claim for increased disability rating for bilateral hearing loss prior to February 25, 2020 is granted at 10 percent, but no higher, prior to that date, and to 30 percent from that date. However, the claim for increased disability rating for bilateral hearing loss in excess of 30 percent from December 16, 2020 is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.