Citation Nr: 21040767 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-58 371A DATE: July 6, 2021 ORDER Entitlement to service connection for a right ear hearing loss disability is denied. REMANDED Entitlement to service connection for bronchitis is remanded. FINDING OF FACT The competent evidence does not show that the Veteran has current right ear hearing impairment that meets the criteria for a hearing loss disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for a right ear hearing loss disability are not met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to December 1990. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a July 2017 hearing. The transcript of the hearing is of record. A January 2019 Board decision remanded the issues on appeal for further development. A February 2021 Board decision granted service connection for sinusitis and allergic rhinitis and remanded the remaining issues on appeal for further development. An April 2021 rating decision granted service connection for tinnitus and sinus headache disabilities and recharacterized the Veteran's sinusitis disability to include the Veteran's claimed disabilities of vertigo and ear fulness in the service-connected disability and its rating. As the decision constituted a complete grant of the benefit sought on appeal for these issues, they are not before the Board. 1. Entitlement to service connection for a right ear hearing loss disability The Veteran contends that she is entitled to service connection for a right ear hearing loss disability. The Board concludes that the competent evidence indicates that the Veteran does not have a current right ear hearing loss disability for VA purposes and service connection is therefore not warranted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). For VA purposes, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. VA treatment records show a diagnosis of bilateral hearing loss but are silent for audiometric testing or complaints or treatment regarding a hearing loss disability. An April 2013 private audiological examination indicated that puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 25 N/A 20 LEFT 10 15 20 N/A 15 Speech audiometry conducted with the N061B test revealed speech recognition ability of 100 percent in both ears. The examiner found normal hearing in both ears with the exception of a slight hearing loss at 2000Hz in the right ear. The Board notes that the provider did not provide results for 3000Hz and also notes that the provider did not use the MD CNC Test as required by the regulations in conducting speech recognition testing. The examination is therefore inadequate for review and the Board assigns it no probative weight. 38 C.F.R. § 3.385. At the May 2014 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 25 20 20 LEFT 20 15 25 25 20 The average puretone threshold was 20 decibels in the right ear and 21 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 96 percent in both ears. The examiner diagnosed sensorineural hearing loss in both ears. The examiner noted the Veteran's reports of difficulty hearing speech at times and needing to ask for repetition. At the August 2016 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 20 20 20 LEFT 20 20 20 20 20 The average puretone threshold was 19 decibels in the right ear and 20 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 100 percent in both ears. The examiner found normal hearing in both ears. At the April 2021 VA audiological examination for compensation purposes, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 20 20 15 LEFT 10 15 15 15 10 The average puretone threshold was 17.50 decibels in the right ear and 13.75 decibels in the left ear. Speech audiometry conducted with the Maryland CNC test revealed speech recognition ability of 100 percent in both ears. The examiner found normal hearing in both ears. The examiner noted the Veteran's reports of difficulty hearing at work and in social situations and having trouble understanding speech and needing people to repeat themselves. She also reported right ear pain, a feeling of fulness and muted sensation. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). As noted above, in order to be considered a disability for VA purposes, hearing loss must be shown to meet certain audiometric criteria. In this case, the evidence does not support the conclusion that those criteria have been met. All of VA examinations of record show that the auditory thresholds were not met, and the August 2016 and April 2021 VA examinations diagnosed normal hearing. While the May 2014 VA examination diagnosed sensorineural hearing loss in the right ear, the audiometric results from that examination indicate that the hearing loss was not at a level to be considered a disability for VA purposes as none of the auditory thresholds were 26 or more and speech recognition testing results were not less than 94 percent. There is no indication in the record that the Veteran's speech recognition score in the right ear ever fell below 96 percent. The Board therefore finds that the Veteran's hearing impairment does not meet the criteria to be considered a disability for VA purposes. As noted above, the April 2013 private examination is inadequate for rating purposes. However, the Board notes that it also did not show that auditory thresholds were met as none of the tested auditory thresholds were 26 or greater and the word recognition score was 100 percent. Thus, the results of the private examination also did not support the conclusion that the Veteran has a current right ear hearing loss disability for VA purposes. The Veteran is competent to report her difficulty hearing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2) (2017). Nevertheless, as a layperson, without the appropriate medical training and expertise, her statements are not competent evidence to provide a probative opinion on a medical matter, especially the severity of her right ear hearing impairment in terms of the applicable criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of her hearing loss, including audiometric testing for puretone thresholds. The Board acknowledges that in addition to diminished hearing, at the April 2021 VA examination the Veteran reported feelings of ear fulness with discomfort. However, as noted above the Veteran's symptoms of ear fulness have already been included in the rating for her service-connected sinusitis disability. The Board therefore finds that the competent evidence of record indicates that the Veteran's right ear hearing impairment does not meet the criteria to be considered a disability for VA purposes. Service connection is therefore not warranted. 38 C.F.R. §§ 3.303, 3.385. REASONS FOR REMAND 1. Entitlement to service connection for bronchitis is remanded. The February 2021 Board decision remanded the issue for a new VA examination, asking the examiner to indicate whether the Veteran's bronchitis was caused or aggravated by her service connection sinusitis and allergic rhinitis. A March 2021 VA respiratory examination noted the Veteran's reports of sinusitis/rhinitis leading to bronchitis and treatment with corticosteroids, however the examiner did not find any current or prior respiratory diagnosis. The examiner stated that there was no current diagnosis because the Veteran had bronchitis after episodes of sinusitis and exacerbation, and she was not in exacerbation on the day of examination. The provider then noted a verbal history of yearly diagnosis. The Board finds that this opinion is inadequate as it limited the question of a current diagnosis to whether the Veteran had bronchitis on the day of the examination. In claims for service connection, the question is whether the Veteran had the claimed disability at any point during or proximate to the period on appeal. As the examiner expressly limited his opinion regarding whether there was a current disability to the day of examination, despite noting lay evidence of yearly episodes of bronchitis, the examiner failed to properly address the question of whether the Veteran had a current disability of bronchitis during the period on appeal. The Board also finds that the examination is inadequate as it is based on an inaccurate medical history. While the examiner found that the Veteran had never been diagnosed with a respiratory disability, the report is silent for any indication that the examiner considered the evidence of record showing diagnoses of bronchitis. February 2006 private treatment records, August 2011 private treatment records, May 2015 private treatment records and the September 2016 VA examination all diagnosed acute bronchitis. A medical examination, as this one, that is based on an inaccurate factual premise is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A new examination and opinionbased on full review of the record and supported by stated rationaleis needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current bronchitis disability. The examiner should review the file and provide a complete rationale for all opinions expressed. The following opinions are requested: a) Has the Veteran had a current bronchitis disability at any point during the period on appeal? Please indicate why or why not. b) If a current bronchitis disability is found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service or whether it was caused or aggravated by the Veteran's service connection sinusitis or rhinitis. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of her symptoms. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.