Citation Nr: 22017570 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 18-30 641 DATE: March 25, 2022 ORDER Entitlement to a rating in excess of 10 percent for bilateral hearing loss is denied. Entitlement to service connection for a right-hand disability, to include as secondary to the right forearm scar, is denied. FINDINGS OF FACT 1. Audiometric examinations correspond to no greater than a level IV hearing loss for the right ear, and no greater than a level V hearing loss for the left ear. 2. The Veteran's right-hand disability is not related to service, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for a bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.85, Diagnostic Code 6100 (2020). 2. Service connection for a right-hand disability, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C. §§ 1110, 1131 (2012)38 C.F.R. §§ 3.303, 3.304, 3.310, 3.317 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1965 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In July 2020, the Veteran testified at a virtual hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the electronic claims file. In August 2020, the Board remanded these issues for additional development. Increased Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2020). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings 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 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his bilateral hearing loss disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Under the rating criteria, the basic method of rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Factual Background and Analysis The Veteran filed a claim for an increased rating that was received by VA on December 4, 2017. In August 2020, the Board remanded the issue of entitlement to a compensable evaluation for right ear hearing loss and granted the issue of service connection for left ear hearing loss. In a September 2020 rating decision, the RO assigned a 10 percent evaluation for bilateral hearing loss, effective December 4, 2017. The Veteran underwent a VA examination in February 2018. On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 65 65 58 LEFT 45 55 70 70 60 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 76 percent in the left ear. The examiner noted that the Veteran's hearing loss impacted his ordinary conditions of daily life to include his ability to work as the Veteran reported that he could not hear on the phone and had to ask people to request things 2 to 3 times. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 58 decibels combined with the right ear speech discrimination of 84 percent results in a Roman numeral designation of III, while the left ear pure tone threshold average of 60 decibels when combined with the left ear speech recognition of 76 percent results in a Roman numeral designation of IV. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran underwent a private audiology examination in April 2018. On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 60 55 54 LEFT 40 45 70 70 56 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 72 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 54 decibels combined with the right ear speech discrimination of 76 percent results in a Roman numeral designation of IV, while the left ear pure tone threshold average of 56 decibels when combined with the left ear speech recognition of 72 percent results in a Roman numeral designation of V. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran underwent a private audiology examination in June 2020. On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 60 60 55 LEFT 40 45 70 70 56 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 72 percent in the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 55 decibels combined with the right ear speech discrimination of 76 percent results in a Roman numeral designation of IV, while the left ear pure tone threshold average of 56 decibels when combined with the left ear speech recognition of 72 percent results in a Roman numeral designation of V. Application of these findings to Table VII corresponds to a 10 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. Per the August 2020 Board remand instructions, the Veteran underwent a VA examination in June 2021. On air conduction testing, audiological evaluation pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 70 65 56 LEFT 40 50 70 70 58 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 94 percent in the left ear. The examiner noted that the Veteran's hearing loss impacted his ordinary conditions of daily life to include his ability to work as the Veteran reported that his wife used to complain about how loud the television was at all times and everyone else was complaining to him about having to repeat themselves. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 56 decibels combined with the right ear speech discrimination of 76 percent results in a Roman numeral designation of IV, while the left ear pure tone threshold average of 58 decibels when combined with the left ear speech recognition of 94 percent results in a Roman numeral designation of II. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. As the February 2018, December 2018, June 2020 and June 2021 testing results noted above do not yield findings to support assignment of a rating in excess of 10 percent for bilateral hearing loss, the Veteran is not entitled to a rating in excess of 10 percent rating for bilateral hearing loss. 38 C.F.R. §§ 4.7, 4.21. Notably, aside from the February 2018, December 2018, June 2020 and June 2021 VA examination reports, there are no other audiometric testing results which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes. The Board has carefully considered the Veteran's assertions and other lay statements of record and in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral hearing loss should be rated higher. However, as noted above, the February 2018, December 2018, June 2020 and June 2021 examinations were conducted in accordance with the requirements for a hearing impairment examination for VA purposes. See 38 C.F.R. § 4.85(a) (2020). The lay statements are both competent and credible in regard to reporting worsening hearing acuity and functional effects. However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulties with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. Although the Veteran has indicated that his hearing is worse than the criteria associated with the assigned evaluations, the rating criteria for hearing loss, as addressed above, requires the mechanical application of rating criteria to objectively-obtained audiometric testing results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The current 10 percent evaluation is reflected by the rating evidence of record and there is no indication that the findings on the February 2018, and June 2021 VA audiological examinations are inadequate. Thus, the Veteran's claim for a rating in excess of 10 percent for his bilateral hearing loss disability cannot be granted. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (1) (2020). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected bilateral hearing loss were inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria shows that the rating criteria reasonably described his disability level and symptomatology with respect to the symptoms he experienced. During his February 2018 and June 2021 audiological examinations, the VA examiners noted that the Veteran's hearing loss impacted his ordinary conditions of daily life, including his ability to work as the Veteran reported having difficulty hearing the television and that people had to repeat themselves around him. In this case, the Board finds that the schedular rating currently assigned for hearing loss reasonably describes the Veteran's disability level and symptomatology. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran reports that he's had decreased hearing since his military service. The Court has held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are precisely the effects that VA's audiometric tests are designed to measure. Doucette v. Shulkin, No. 15-2818, 2017 WL 877340, at *3 (Vet. App. Mar. 6, 2017). The situations noted by the Veteran in this case amount to decreased hearing and are not exceptional or unusual for someone with hearing loss. In Doucette, the Court recognized that there were other functional effects the rating criteria did not discuss or account for, such as dizziness, vertigo, ear pain, recurrent loss of balance, social isolation, etc. Id., at *3, *4. No such effects are present in this case. The Veteran's description of difficulty hearing has been measured according to pure tone averages and speech discrimination. As explained above, the rating criteria are designed to take into account testing that accurately measures difficulty hearing in an objective way and the Veteran's reports of difficulty hearing simply do not represent an exceptional or unusual case. As such, the first Thun element cannot be met. Accordingly, the Board has concluded that referral of the Veteran's bilateral hearing loss impairment for extra-schedular consideration is not in order. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, the Veteran has multiple service connected disabilities, but there is no argument or indication that the combination of these disabilities is so exceptional as to warrant extraschedular consideration. As such, further discussion of an extraschedular rating based upon the combined effect of multiple conditions is not necessary. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). In short, the rating criteria reasonably describe the Veteran's disabilities level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. Such permits a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation to a nonservice- connected disability by a service- connected disability. Id. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Factual Background an Analysis The Veteran contends that he has a current right-hand disability that is related to service to include as secondary to a service-connected scar of the right forearm. While the Veteran is service connected for a scar of the right forearm, the Veteran's service treatment records are negative for treatments, complaints or diagnoses specifically related to a right-hand disability. In February 2018, the Veteran underwent a VA neurological examination of the right upper extremity but he did not undergo an orthopedic examination of the right hand. The February 2018 VA examiner opined that it was less likely than not that the Veteran's claimed right-hand disability was due to or the result of his scar of the right forearm disability as he was unable to confirm a current right-hand disability. The examiner, however, noted that the Veteran had a right-hand tremor. At his July 2020 hearing, the Veteran attributed his right-hand disability to the in-service fall that resulted in the scar. Per the August 2020 Board remand instructions, the Veteran underwent a VA examination in May 2021. It was noted that while Parkinson's disease was ruled out, the Veteran had persistent right-hand tremors. The examiner opined that it was less likely than not that the Veteran's right-hand disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner also opined that it was less likely than not that the Veteran's right-hand disability was caused or aggravated by a service-connected disability. The examiner indicated that no diagnosis was provided. The Veteran again underwent a VA examination in January 2022. The examiner opined that it was less likely than not that the Veteran's right-hand disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that the Veteran's right-hand tremors were less likely than not related to service, to include the in-service injury to the right upper extremity that resulted in a scar. The examiner also opined that it was less likely than not that the Veteran's right-hand disability was caused or aggravated by a service-connected disability. The examiner indicated that there were no known mechanisms connecting those conditions between the right-hand tremors and the right forearm scar. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a right-hand disability is not warranted. As there is a current diagnosis of tremors of the right hand, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). Notably, while the Veteran's service treatment records demonstrate that the Veteran injured his upper right extremity in a fall that resulted in his service-connected scars of the right forearm, the Board notes that the Veteran's service treatment records are negative for complaints or treatments for a chronic right-hand disability. Additionally, the only medical opinion addressing the etiology of the right-hand disability weighs against the claim as the May 2021 and January 2022 VA examiners indicated that it was less likely than not that the Veteran's right-hand disability was related to service. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a right-hand disability is not warranted on a direct basis. Regarding service connection on a secondary basis, as noted above, in a January 2022 opinion, the VA examiner opined that it was at least as likely as not that the Veteran's right-hand disability was caused or aggravated by a service-connected disability as the examiner noted that there were no known mechanisms connecting those conditions between the right-hand tremors and the right forearm scar. As a result, the Board finds that the weight of the evidence is against a finding that the Veteran's current right-hand disability is etiologically related to the Veteran's service-connected right forearm scar disability or by any other service-connected disability. None of the competent medical evidence currently of record refutes these conclusions, and the Veteran has not presented or identified any such existing medical evidence or opinion. Consequently, entitlement to service connection for a right-hand disability is not warranted on a direct or secondary basis. In sum, for the reasons and bases expressed above the Board finds that the evidence weighs persuasively against the Veteran's claim of entitlement to service connection for a right-hand disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). The Board notes the Veteran's contentions regarding the etiology of his claimed right-hand disability. To the extent that the Veteran himself contends that a medical relationship exists between his claimed right-hand disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a right-hand disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran and his representative do not have the medical expertise to provide an opinion regarding the claimed right hand disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiners provided detailed rationale in support of their opinions and cited to the relevant evidence. For this reason, the VA examiners' opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the evidence weighs persuasively against the Veteran's claim of entitlement to service connection for a right-hand disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.