Citation Nr: 21041317 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 19-24 490 DATE: July 8, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to an initial compensable rating prior to November 9, 2020, for bilateral hearing loss disability is denied. Entitlement to a rating of 20 percent, but not higher, beginning November 9, 2020, for bilateral hearing loss disability is granted. FINDINGS OF FACT 1. There is no objective medical evidence that the Veteran has a respiratory disability. 2. Prior to November 9, 2020, the Veteran's hearing acuity was no worse than Level I in both ears. 3. From November 9, 2020, the Veteran's hearing acuity was no worse than Level IV in the right ear and Level VII in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a respiratory disability have not been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. § 3.303 (2020). 2. The criteria for an initial compensable rating for bilateral hearing loss disability have not been met prior to November 9, 2020. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100 (2020). 3. The criteria for a rating of 20 percent, but not higher, for bilateral hearing loss disability have been met beginning November 9, 2020. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100, 4.86 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1965 to March 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2020. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in January 2021, at which time the issues currently on appeal were remanded for additional development. It has now been returned to the Board for further appellate action. 1. Service Connection Respiratory Disability The Veteran has contended that he has a respiratory disability secondary to service-connected malaria. Specifically, he reported that he began to have a dry, chronic cough and/or shortness of breath (SOB) after undergoing treatment for malaria. He stated that he was placed in packed ice for a few days to lower his temperature during service. Service treatment records (STRs) are silent for treatment or diagnosis of a respiratory disability, to include asthma, SOB, or dry/chronic cough. Further, a service examiner noted that there were no residuals of malaria at his February 1969 separation examination. In July 1973, the Veteran was afforded a VA examination. He complained of a daily dry cough, sometimes starting as a tickle in his throat. He denied wheezing, SOB, and nocturnal dyspnea. The examiner observed that the veteran had an intermittent dry cough, but no unusual SOB with room activity. His chest X-ray and pulmonary function test (PFT) results were within normal limits. Pulmonary disease was not found. A review of VA treatment records reveal that the Veteran reported that he had been diagnosed with asthma and prescribed an inhaler by a private physician. Private medical records show that the Veteran was prescribed an inhaler for shortness of breath on exertion. The Board acknowledges that the Veteran was diagnosed with asthma or seasonal asthma by a VA examiner in September 2016. However, in March 2021, a VA examiner explained that the Veteran's reported cough had not been associated with the seasons and that he had never been diagnosed with an allergy. The March 2021 VA examiner observed that there were no prior PFT results to prove that the Veteran had asthma. Moreover, the Veteran had normal PFT test results at the March 2021 VA examination. The term "disability," used for VA purposes, refers to impairment of earning capacity resulting from diseases and injuries and their residual conditions. Allen v. Brown, 7 Vet. App. 439 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). See also Saunders v. Wilkie, No. 886 F.3d. 1356 (Fed. Cir. 2018). There is no evidence of record that suggests that the Veteran's symptoms were sufficient to cause any resulting disability or functional impairment. See Saunders v. Wilkie, No. 886 F.3d. 1356 (Fed. Cir. 2018). In the absence of proof of a present disability, there can be no valid claim. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Veteran is competent to identify shortness of breath and dry/chronic cough, he is not competent to provide a diagnosis or an opinion as to the etiology of those symptoms, as that requires medical expertise and is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran had been prescribed an inhaler for shortness of breath on exertion, he admitted that he had not been able to take a PFT because of his blackouts. Furthermore, there are no documented residuals of the Veteran's malaria. Hence, the Board gives more probative weight to the March 2021 VA examination report. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a respiratory disability is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Increased Rating Bilateral Hearing Loss The Veteran has asserted that his bilateral hearing loss disability is worse than accounted for by the currently assigned ratings. In September 2008, the Veteran was afforded a VA audiological evaluation. He reported occasional difficulty with hearing and understanding, to specifically include speech in noise. Audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 10 25 25 30 23 Left Ear 20 35 25 50 33 Speech discrimination scores were 96 percent in both ears. Applying those values to the rating criteria results in a numeric designation of Level I in both ears. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII results in a noncompensable (0 percent) rating. 38 C.F.R. § 4.85. In August 2018, the Veteran was afforded another VA audiological evaluation. He mentioned that others had to repeat themselves often because of his hearing. Audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 15 30 35 35 29 Left Ear 45 45 45 45 45 Speech discrimination scores were 98 percent in the right ear and 96 percent in the left ear. Applying those values to the rating criteria results in a numeric designation of Level I in both ears. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII results in a noncompensable (0 percent) rating. 38 C.F.R. § 4.85. In March 2021, the Veteran was afforded an additional VA audiological evaluation. He described an inability to understand what others were saying and he had to ask people to repeat themselves. Audiometric testing results at that time were as follows: Hertz 1000 2000 3000 4000 Average Right Ear 50 55 60 60 56.25 Left Ear 60 60 70 65 62.50 Speech discrimination scores were 76 percent in the right ear and 56 percent in the left ear. Applying those values to the rating criteria results in a numeric designation of Level IV in the right ear and Level VII in the left ear. 38 C.F.R. § 4.85, Table VI. Application of the levels of hearing impairment in each ear to Table VII results in a 20 percent rating. 38 C.F.R. § 4.85. The Board notes that none of the September 2008 and August 2018 audiological findings qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the Veteran at no point had Puretone thresholds of 55 decibels or more at each of the four specified frequencies or a Puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz in either ear. While the March 2021 audiological findings do qualify as an exceptional pattern of hearing impairment, the use of the speech discrimination scores was determined to be appropriate for the Veteran under the provisions of 38 C.F.R. § 4.85. Additionally, the Board finds the use of Table VI more advantageous for the Veteran. 38 C.F.R. § 4.86. The Board finds that the Veteran is not entitled to a compensable rating for his bilateral hearing loss disability prior to November 9, 2020. In this regard, prior to November 9, 2020, the Veteran's hearing acuity was shown to be, at worse, Level I in both ears. Those results fall squarely within the schedular criteria for a noncompensable (0 percent rating). Therefore, the criteria for a compensable rating prior to November 9, 2020, have not been met. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board finds that the Veteran is entitled to a rating of 20 percent, but not higher, for bilateral hearing loss disability beginning November 9, 2020, the date of his hearing before the Board at which time he reported his bilateral hearing loss disability had increased in severity. In this regard, the Veteran's hearing acuity beginning November 9, 2020, was shown to be Level IV in the right ear and Level VII in the left ear. Those, values fall squarely within the schedular criteria for a 20 percent rating, even after considerations of exceptional patterns of hearing loss pursuant to 38 C.F.R. § 4.86. Therefore, a rating of 20 percent, but not higher is warranted for bilateral hearing loss disability beginning November 9, 2020. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board in no way discounts the difficulties that the Veteran experiences as a result of his bilateral hearing loss; however, because hearing loss is a disability requiring a "mechanical application of the rating schedule," the Board cannot find a basis in law or regulation to support a compensable disability rating. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Additionally, the Veteran's assertions as to the severity of his bilateral hearing loss and its impact on his daily life though competent and credible, are less probative than the objective audiology studies of record, prepared by skilled professionals, in determining that his bilateral hearing loss does not meet the criteria for a compensable rating. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, the VA audiological examination reports considered the Veteran's report of the impact his hearing loss had on his ordinary conditions of life, including his ability to work. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to an initial compensable rating for bilateral hearing loss disability prior to November 9, 2020, and is for the claim of entitlement to a rating of 20 percent, but not higher, beginning that November 9, 2020. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.