Citation Nr: A23034026 Decision Date: 11/30/23 Archive Date: 11/30/23 DOCKET NO. 230330-335317 DATE: November 30, 2023 ORDER The appeal with respect to entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. An initial rating in excess of 30 percent for bilateral hearing loss is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. Entitlement to service connection for vertigo as secondary to service-connected tinnitus and/or migraine headaches is remanded. Entitlement to service connection for flat feet is remanded. Entitlement to service connection for a low back disability as secondary to bilateral flat feet is remanded. FINDINGS OF FACT 1. On the record at a July 2023 hearing, prior to the promulgation of an appellate decision on the matter, the Veteran requested that the appeal with respect to entitlement to an initial rating in excess of 10 percent for tinnitus be withdrawn. 2. The objective medical evidence shows that the Veteran's bilateral hearing loss has been productive of hearing acuity no worse than Level VI in either ear. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to an initial rating in excess of 10 percent for tinnitus have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for an initial rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1965 to November 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2022 and May 2022 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the April 2022 rating decision, the RO granted service connection and a 10 percent rating for tinnitus, granted service connection and a 30 percent rating for migraine headaches, and denied service connection for vertigo, bilateral flat feet, and a low back disability. In the May 2022 rating decision, the RO granted service connection and a 30 percent rating for bilateral hearing loss. In March 2023, the Veteran timely appealed to the Board by submitting two separate notices of disagreement (NODs). In one NOD, he appealed the ratings assigned for his service-connected migraine headaches and tinnitus, as well as the denials of service connection for vertigo, bilateral flat feet, and a low back disability. In the other NOD, he appealed the rating assigned for his service-connected bilateral hearing loss. In both NODs, he requested the hearing review option. 38 C.F.R. §§ 20.201, 20.202(b)(2). On July 13, 2023, the Veteran and his spouse testified at two separate Board hearings before a Veterans Law Judge. Transcripts of those hearings have been associated with the record. Under the hearing review option, the Board may only consider the evidence of record at the time of the respective agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or his representative at the hearings or within 90 days following the hearings. 38 C.F.R. §?20.302(a). The Board cannot consider (1) evidence submitted during the period after the AOJ issued the respective decisions on appeal and before the hearings were held, or (2) evidence submitted more than 90 days after the hearings were held. 38 C.F.R. § 20.302. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the Veteran's claim for a higher initial rating for bilateral hearing loss. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. With respect to the claim for a higher initial rating for tinnitus, the Board is dismissing the appeal of that claim for the reasons outlined below. As to the other remaining claims, the Board is remanding them. The AOJ will consider any additional evidence that has been submitted when those claims are readjudicated. As a final introductory matter, the Board notes that the Veteran's representative in September 2023 requested a 60-day extension of time for the submission of additional evidence. However, such extensions are not permitted under the AMA. If, after this decision is issued, the Veteran has additional evidence he would like to have considered in connection with a claim that is currently being decided, he may file a new or Supplemental Claim with the AOJ, as appropriate. 1. The appeal with respect to entitlement to an initial rating in excess of 10 percent for tinnitus is dismissed. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. Id. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. In this case, on the record at one of the July 2023 hearings, prior to the promulgation of a Board decision on the matter, the Veteran requested that his appeal with respect to entitlement to an initial rating in excess of 10 percent for tinnitus be withdrawn. That request has since been reduced to writing in a transcript, received by the Board, which includes the Veteran's name and his VA file number. Under the circumstances, the Board finds that the requirements for a proper withdrawal have been satisfied. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeal of this issue, there remain no allegations of error of fact or law for appellate consideration with respect to this issue. Accordingly, the appeal of this issue must be dismissed. 2. Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss is denied. In the May 2022 rating decision on appeal, the RO granted service connection for bilateral hearing loss and assigned an initial 30 percent rating therefor. The Veteran contends that a higher rating is warranted. Specifically, at the July 2023 hearing regarding this issue, he contended that his hearing loss had progressed and was more severe than reflected by the 30 percent rating. He noted that he had not yet undergone another hearing test, but that he would be undergoing one in a couple of weeks and that he would submit the results following the hearing. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hearing loss is evaluated under Diagnostic Code 6100. The condition is normally rated on the basis of controlled speech discrimination tests (Maryland CNC), together with the results of puretone audiometry tests. See 38 C.F.R. § 4.85. Ordinarily, the results of these tests are charted on Table VI, as set out in the Rating Schedule, to determine the appropriate Roman numeral designation (I through XI) to be assigned for the hearing impairment in each ear. These numeric designations are then charted on Table VII to determine the rating to be assigned. Id. See, e.g., Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (indicating that evaluations of hearing loss are determined by a mechanical application of the rating schedule). However, not all patterns of hearing loss are rated in this manner. For example, if the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the Roman numeral designation for that ear is taken from either Table VI or VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). See also 38 C.F.R. §§ 4.85(c) and 4.86(b) (indicating that alternative methodologies also apply when the examiner certifies that use of the speech discrimination test is not appropriate or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). In the present case, the record reflects that the Veteran was afforded a VA examination in connection with his claim in February 2022. Audiometric testing at that time revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Avg RIGHT 65 65 70 70 67.5 LEFT 65 65 75 85 72.5 His Maryland CNC speech recognition score in the right ear was 72 percent, and in the left ear it was 68 percent. Applying these results to Table VI yields a numeric designation of Level VI in both ears; which, in turn, warrants a 30 percent rating under Table VII. The Board notes that an exceptional pattern of hearing impairment was shown in both ears under 38 C.F.R. § 4.86(a), inasmuch as all of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz in both ears were above 55 decibels. Applying the results to Table VIa yields Level V in the right ear and Level VI in the left ear; which, in turn, warrants only a 20 percent rating under Table VII. Applying the results to Table VI, therefore, yields the higher numerals as compared to Table VIa, and results in the highest rating possible under Table VII - 30 percent. The Board also notes that the claims file does not contain any other audiometric findings. While the Veteran stated at the July 2023 hearing that he had another hearing test scheduled soon thereafter, he did not submit any evidence following the July 2023 hearing regarding a higher rating for bilateral hearing loss. In light of the foregoing, it is the Board's conclusion that the evidence is persuasively against the Veteran's claim for an initial rating in excess of 30 percent for bilateral hearing loss. As set forth above, the only available audiometric report demonstrates entitlement to nothing more than a 30 percent rating. The Board acknowledges the lay evidence of record, including the Veteran's assertions of difficulty in hearing and his spouse's testimony that he must turn the television up very loud to hear it. The Veteran and his spouse are competent to report such difficulties; however, as noted, disability ratings for hearing loss are derived from a mechanical application of the rating schedule. The functional impacts that the Veteran has described are fully contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the claim, that doctrine is not for application. 38 C.F.R. §§ 4.3, 4.7. The appeal of this issue must be denied. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. In the April 2022 rating decision on appeal, the RO granted service connection for migraine headaches and assigned an initial 30 percent rating therefor. The Veteran seeks a higher rating. At the July 2023 hearing, he testified that his headaches caused an inability to function and that when they occurred, he had to lie down. He also testified that he had sensitivity to light, that it impacted his sense of smell, and that when he was having a migraine he could not concentrate or do activities of daily living. His spouse testified that the Veteran had migraine headaches two to three times per week, and the Veteran testified further that he reported to the VA examiner that they occurred at least every week and that he has more than one to two per month. The Veteran was afforded a VA examination in connection with his claim in February 2022. The examiner noted that the Veteran took Tylenol and that he had previously taken sumatriptan. She indicated that the typical duration of a headache was 1 to 2 days and that he had characteristic prostrating attacks of migraine/non-migraine headache pain once every month, but that he did not have very prostrating and prolonged attacks of migraines/non-migraine headache pain productive of severe economic inadaptability. The examiner also opined that the disability's impact on the Veteran's ability to work was that he would have difficulty functioning in a job capacity that had loud noise or prolonged computer use. The Board notes that the evidence indicates that the Veteran has used medications to treat his headaches throughout the period on appeal. The United States Court of Appeals of Veterans Claims (Court) has held that in assigning a disability rating, VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). The Veteran's headache disability has been rated under Diagnostic Code (DC) 8100, for migraine headaches, which does not contemplate the effects of medication. Thus far, no examiner has offered an opinion with respect to the severity of the Veteran's headaches when the ameliorative effects of medication are disregarded, which makes the February 2022 VA examination less than fully adequate. Further development is therefore required, as the Board finds that the agency of original jurisdiction (AOJ) made a pre-decisional duty to assist error when it failed to afford the Veteran a fully adequate VA examination. 2. Entitlement to service connection for vertigo as secondary to service-connected tinnitus and/or migraine headaches is remanded. The Veteran contends that his vertigo is secondary to his service-connected tinnitus and/or migraine headaches. In his December 2022 application, he contended that the vertigo was secondary to tinnitus. At the July 2023 hearing, he contended that it was secondary to migraine headaches. He also testified that a doctor had told him that his vertigo was related to ringing in the ears (tinnitus) and/or to migraine headaches. In the April 2022 rating decision, the AOJ made favorable findings to the effect that the Veteran had been diagnosed with vertigo and that the claimed primary disability of tinnitus was service-connected. Those favorable findings are binding on the Board and are not in dispute. 38 C.F.R. § 3.104(c). The Veteran was afforded a VA examination in connection with his claim in February 2022. The examiner offered a negative nexus opinion as to whether vertigo was secondary to tinnitus. She reasoned that there was no provider documentation or treatments to support the claim of vertigo to the Veteran's service-connected tinnitus. The Board finds that the February 2022 VA opinion is inadequate. The examiner did not offer any rationale to support her opinion, and she did not clearly address either prong of secondary service connection (causation or aggravation). The Board finds that the AOJ made a pre-decisional duty to assist error when it failed to afford the Veteran a fully adequate VA examination and/or opinion. Remand for a new VA medical opinion is therefore required. The Board also acknowledges that the February 2022 VA examiner did not offer an opinion as to whether the Veteran's vertigo was secondary to his service-connected migraine headaches disability. However, as that contention was not raised until the July 2023 hearing, the Board finds that the AOJ did not make any pre-decisional duty to assist errors in that regard. The Board also notes that it has carefully reviewed the treatment records in the claims file for any statements from doctors indicating that the Veteran's vertigo is related to his service-connected tinnitus and/or migraine headaches, but notes that the claims file does not contain any such statements. 3. Entitlement to service connection for bilateral flat feet is remanded. The Veteran contends that his flat feet were aggravated by service. He acknowledges that the condition existed prior to his entry to service. In his December 2014 application for service connection, he stated that the condition was aggravated by continuous marching, running, walking, and by being in boots all of the time. He stated further that road marches caused bunions, hammer toes, severe pain, and swelling. At the July 2023 hearing, he testified that he had ill-fitting boots and contended that this aggravated his flat feet and that he also got hammertoes, started having bunions, and that he had corns growing under his toenails. His spouse testified that she had known him since prior to his entry into service and that he complained during service and had to soak his feet and take aspirin, and that she rubbed his feet. In the April 2022 rating decision, the AOJ made favorable findings to the effect that the Veteran had been diagnosed with flat feet and that the disability existed prior to service. Those favorable findings are binding on the Board and are not in dispute. The Veteran's November 1965 entrance examination notes that he had bilateral pes planus (flat feet) at that time. His September 1967 separation examination does not indicate that he had any problems with his feet at that time, and in the accompanying report of medical history, the Veteran specifically denied having any problems with his feet. The Board also notes that his service treatment records (STRs) are silent for any complaints of, treatment for, or diagnoses relating to any problems with the feet, including flat feet, bunions, corns, or hammer toes. To date, the Veteran has not been afforded a VA examination and/or opinion in connection with his claim. Given the presence of a current disability and the Veteran's contention that marching, walking, running, and wearing boots during service aggravated the condition, the Board finds that a VA examination and/or opinion is warranted. While acknowledging that the Veteran's STRs, including his September 1967 separation examination, are silent for any mention of foot trouble or problems, the Board is prohibited from exercising its own independent medical judgment in adjudicating appeals, and finds that a VA medical opinion that addresses in-service aggravation is necessary. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds further that the AOJ made a pre-decisional duty to assist error in failing to afford the Veteran a VA examination and/or opinion. 4. Entitlement to service connection for a low back disability as secondary to bilateral flat feet is remanded. The Veteran contends that his low back disability is secondary to his bilateral flat feet. In the April 2022 rating decision, the AOJ made favorable findings to the effect that the Veteran had a current diagnosis of lumbar spine degenerative arthritis and that the condition was secondary to the primary disability of bilateral flat feet. Those favorable findings are binding on the Board and are not in dispute. Review of the claims file confirms that the evidence demonstrates that the Veteran's current low back disability is secondary to bilateral flat feet. However, as flat feet, at least at present, is not a service-connected disability, an award of service connection at present, on that basis, is not warranted. The Board finds that the Veteran's claim for service connection for a low back disability is inextricably intertwined with his claim for service connection for bilateral flat feet, which is being remanded for additional development. Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). As such, the Board will remand the low back issue as well. These matters are REMANDED for the following action: 1. Arrange to provide the record on appeal to the VA examiner who examined the Veteran in February 2022 for his migraine headaches. After reviewing the record, the examiner should offer an retrospective opinion as to whether, when disregarding the ameliorative effects of medication, it is at least as likely as not (i.e., the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's migraine headaches would have been manifested at any time since December 2021 (when he filed his claim for service connection) by headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; and, if so, how frequently that level of impairment would have occurred and how long it would have lasted. In formulating her opinion, the examiner should consider the February 2022 VA examination report and the fact that the Veteran has reported using Tylenol to treat his headaches. If the February 2022 VA examiner is no longer employed by VA or is otherwise unable to offer the requested opinion, arrange to obtain the requested information from another qualified examiner. The need for another in-person examination, or video or telephonic interview of the Veteran is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. If the examiner cannot provide an opinion without resort to speculation, he or she must provide an explanation as why that is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question. 2. Also arrange to provide the record on appeal to the VA examiner who offered an opinion as to the etiology of the Veteran's vertigo in February 2022. After reviewing the record, the examiner should offer an addendum opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's vertigo (a) was caused or (b) has been aggravated (i.e., worsened beyond its natural progression) by his service-connected tinnitus. If the February 2022 VA examiner is no longer employed by VA or is otherwise unable to offer the requested opinion, arrange to obtain the requested information from another qualified examiner. The need for another in-person examination, or video or telephonic interview of the Veteran is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. 3. Also arrange to provide the record on appeal to a qualified VA clinician for the purpose of offering an opinion as to in-service aggravation of the Veteran's pre-existing bilateral flat feet. After reviewing the record, the examiner should offer an opinion as to whether it is clear and unmistakable (i.e., manifest, obvious, or undebatable) that the Veteran's bilateral flat feet, which clearly and unmistakably existed prior to his service, were not permanently aggravated by his period of active service, beyond the natural progress of the condition. In so doing, the examiner should consider the September 1967 separation examination which did not note any problems with the feet, as well as the accompanying report of medical history in which the Veteran denied having foot problems. The examiner should also consider the Veteran's contentions to the effect that the condition was aggravated by service in that he had to march, walk, and run, and that he wore ill-fitting boots. The need for an in-person examination, or video or telephonic interview of the Veteran is left to the discretion of the examiner. A complete medical rationale for all opinions expressed must be provided. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.