12-14 882
12-14 882
| Board of Vet. App. | May 22, 2017Background
- Veteran served on active duty 1972–1974 (plus Naval Reserves); underwent bilateral myringotomy in October 1973 for serous otitis media (SOM). Separation and reserve exams showed normal ears and whispered hearing 15/15; post-service audiometry meeting VA disability thresholds first appears in 2010.
- Claims before the RO and Board: (1) service connection for residuals of ruptured eardrums, including bilateral hearing loss; (2) increased rating for left lower extremity (LLE) radiculopathy (initially 10% from 2010; 20% effective April 16, 2014 granted during appeal).
- VA obtained multiple exams: September 2010 (audiology and neurology), April 2014 and January 2015 (neurology), plus post‑op records after lumbar surgeries (2012 fusion/laminectomy) and June 2015 spinal cord stimulator follow‑up.
- VA examiners found: no tympanic membrane scarring or other residuals of myringotomy; bilateral high‑frequency sensorineural hearing loss attributed to long‑term occupational noise exposure, not service; LLE radiculopathy with muscle weakness and paresthesia pre‑April 16, 2014 (more severe), and moderate, mostly sensory impairment as of April 16, 2014.
- Procedural history: appeal from 2011 and 2013 RO decisions; Board remanded in 2015 for additional records and obtained private records; June 2015 evidence included. Board found duty to notify and assist satisfied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for residuals of ruptured eardrums, including bilateral hearing loss | Veteran: in‑service myringotomies caused scarring that contributed to long‑term hearing loss; onset noticed in 1972–73 and continuous symptoms since service | VA: no current residuals from myringotomy; audiology shows sensorineural loss due to post‑service occupational noise; service records and exams show normal tympanic membranes and no scarring | Denied — no current residuals of ruptured eardrums and no etiological nexus between service and bilateral hearing loss; preponderance of evidence against claim |
| Increased rating for LLE radiculopathy (periods: prior to April 16, 2014; as of April 16, 2014 and after) | Veteran: persistent pain, paresthesia, weakness, falls, functional loss and flare‑ups supporting higher than assigned ratings | VA: medical records and VA exams show moderately severe incomplete paralysis prior to April 16, 2014 but only moderate (sensory predominant, normal muscle strength) impairment on/after April 16, 2014; no atrophy or complete paralysis | Granted in part — 40% rating awarded for period prior to April 16, 2014 (moderately severe incomplete paralysis); denied for rating above 20% as of April 16, 2014 (limited to moderate, mostly sensory impairment) |
Key Cases Cited
- AB v. Brown, 6 Vet. App. 35 (1993) (Board may continue appeal of non‑final RO changes)
- Dyment v. West, 13 Vet. App. 141 (1999) (substantial compliance with Board remand duties)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (elements required for service connection)
- Ledford v. Derwinski, 3 Vet. App. 87 (1992) (absence of in‑service evidence not necessarily fatal to hearing loss claims)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (preponderance of evidence and benefit‑of‑the‑doubt standard)
- Nieves‑Rodriguez v. Peake, 22 Vet. App. 295 (2008) (factors for assessing probative value of medical opinions)