Citation Nr: 1022796	
Decision Date: 06/21/10    Archive Date: 07/01/10

DOCKET NO.  06-21 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUES

1. Entitlement to service connection for right ear hearing 
loss.

2. Entitlement to a compensable rating for left ear hearing 
loss. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Armstrong, Associate Counsel





INTRODUCTION

The appellant is a Veteran who served on active duty from 
April 1985 to April 1989, from October 2001 to April 2002, 
and from February 2003 to June 2004.  He also had service in 
the Reserves.  These matters are before the Board of 
Veterans' Appeals (Board) on appeal from March 2006 and March 
2008 rating decisions of the Cleveland, Ohio and Houston, 
Texas Department of Veterans Affairs (VA) Regional Offices 
(RO), that denied service connection for right ear hearing 
loss and granted service connection for left ear hearing loss 
rated noncompensable effective, September 20, 2004.  In his 
June 2006 VA Form 9 (substantive appeal) the Veteran 
requested a hearing; in April 2009 he withdrew such request.  
The Veteran's claims file is now in the jurisdiction of the 
Houston RO.     

In May 2010, the Board received additional evidence from the 
Veteran.  On review of the evidence the Board finds that it 
is cumulative of evidence that was already associated with 
the claims file, and therefore does not require waiver of RO 
consideration or return to the RO for their initial 
consideration.  38 C.F.R. § 20.1304 (2009).  

In a May 2010 statement, the Veteran alleged that a rating of 
10 percent for tinnitus was not properly accounted for in 
determining his disability rating.  That matter is referred 
to the RO for clarification and any appropriate action. 

The matter of entitlement to service connection or dizziness 
and headaches has been raised by the record (in the Veteran's 
July 2008 statement), but has not been adjudicated by 
the Agency of Original Jurisdiction (AOJ).  Therefore, the 
Board does not have jurisdiction over it, and it is referred 
to the AOJ for appropriate action.  


FINDINGS OF FACT

1. The Veteran is not shown to have a right ear hearing loss 
disability by VA standards.

2. It is not shown that at any time during the appeal period 
the Veteran's hearing acuity was worse than Level I in the 
left ear.


CONCLUSIONS OF LAW

1. Service connection for right ear hearing loss is not 
warranted.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 
(West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 
(2009).

2. A compensable rating for left ear hearing loss is not 
warranted.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 3.102, 4.85, Diagnostic Code (Code) 6100, 4.86 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist 
claimants in substantiating a claim for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA 
applies to the instant claims.  Upon receipt of a complete or 
substantially complete application for benefits, VA is 
required to notify the claimant and his or her representative 
of any information, and any medical or lay evidence, not of 
record (1) that is necessary to substantiate the claim; (2) 
that VA will seek to provide; and (3) that the claimant is 
expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  
VCAA notice requirements apply to all five elements of a 
service connection claim: 1) veteran status; 2) existence of 
a disability; 3) a connection between the Veteran's service 
and the disability; 4) degree of disability; and 5) effective 
date of the disability.  Dingess/Hartman v. Nicholson, 19 
Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 
2007).  VCAA notice should be provided to a claimant before 
the initial unfavorable agency of original jurisdiction 
decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 
(Fed. Cir. 2006).

Regarding service connection for right ear hearing loss, the 
Veteran was advised of VA's duties to notify and assist in 
the development of his claim prior to its initial 
adjudication.  An October 2004 letter explained the evidence 
necessary to substantiate his claim, the evidence VA was 
responsible for providing, and the evidence he was 
responsible for providing.  An August 2007 letter informed 
the Veteran of disability rating and effective date criteria.  
A March 2008 supplemental statement of the case (SSOC) 
readjudicated the matter (curing any notice timing defect).  
See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  The 
Veteran has had ample opportunity to respond/supplement the 
record and has not alleged that notice in this case was less 
than adequate.

Regarding entitlement to a compensable rating for left ear 
hearing loss, as the rating decision on appeal granted 
service connection and assigned a disability rating and 
effective date for the award, statutory notice had served its 
purpose, and its application was no longer required.  See 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, 
Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  An 
April 2009 statement of the case (SOC) provided notice on the 
"downstream" issue of entitlement to an increased initial 
rating; and a December 2009 SSOC readjudicated the matter 
after the appellant and his representative were given an 
opportunity to respond.  38 U.S.C.A. § 7105; see Mayfield v. 
Nicholson, 20 Vet. App. 537, 542 (2006).  The Veteran has had 
ample opportunity to respond/supplement the record.  He has 
not alleged that notice in this case was less than adequate.  
See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding 
that "where a claim has been substantiated after the 
enactment of the VCAA, the appellant bears the burden of 
demonstrating any prejudice from defective VCAA notice with 
respect to the downstream issues").

The Veteran's service treatment records (STRs) are associated 
with the claims file and pertinent postservice treatment 
records have been secured.  The RO arranged for VA 
examinations in November 2007 and November 2009.  The 
examinations are adequate as they considered the evidence of 
record and the reported history of the Veteran, were based on 
an examination of the Veteran, and noted all findings 
necessary for a proper determination in the matter.  See Barr 
v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an 
examination that is adequate for rating purposes).  The 
Veteran has not identified any pertinent evidence that 
remains outstanding.  VA's duty to assist is met.  
Accordingly, the Board will address the merits of the claims.

B. Factual Background

The Veteran's DD Form 214 reveals that his military 
occupation specialty (MOS) was motor transport operator. 

On November 1987 service audiometric evaluation, puretone 
thresholds, in decibels, were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
5
0
LEFT
15
0
5
10
10

On December 1987 service audiometric evaluation, puretone 
thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
0
5
5
0
LEFT
15
0
5
10
10

On January 1992 service audiometric evaluation, puretone 
thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
5
10
5
LEFT
10
0
15
15
35
On November 1996 service audiometric evaluation, puretone 
thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
10
10
LEFT
5
0
10
5
40
On September 2000 service audiometric evaluation, puretone 
thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
0
5
15
LEFT
10
5
10
20
40

An October 2001 Hearing Conservation Data Sheet (DD Form 
2216E) provided a current and reference audiogram.  On 
October 2001 audiometric evaluation, puretone thresholds 
were:




HERTZ



500
1000
2000
3000
4000
RIGHT
0
0
0
5
5
LEFT
10
0
10
15
45

On October 2001 service audiometric evaluation, puretone 
thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
5
15
10
20
LEFT
5
5
10
20
45





On August 2002 service audiometric evaluation, puretone 
thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
5
10
LEFT
5
0
10
20
40

An April 2006 VA outpatient treatment record notes that the 
Veteran had hearing loss and was exposed to improvised 
explosive device (IED) noises and heavy equipment noises in 
Iraq.  
On September 2007 audiometric evaluation while on duty in the 
Reserves, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
45
15
25
35
45
LEFT
60
60
60
60
80

On November 2007 VA examination puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
15
25
LEFT
10
10
15
25
50

The average puretone thresholds were 12 decibels, right ear 
and 25 decibels, left ear.  Speech audiometry revealed speech 
recognition ability of 94 percent bilaterally.  The Veteran 
reported a history of hearing problems since 2003 and noise 
exposure from IEDs.  He reported he worked as a delivery 
person and denied post-service occupational noise exposure.  
The diagnosis was hearing within normal limits for the right 
ear and hearing within normal limits through 3000 Hz with 
moderate sensorineural loss of sensitivity at 4000 Hz for the 
left ear.  

An undated letter (received contemporaneously with an August 
2007 statement from the Veteran) from K.J.W., Au.D. states, 
"I Dr. W., have seen and read the medical services 
statements.  Based upon a review of service records (please 
indicate the documents reviewed), is it at least as likely as 
not that the current condition is related to the complaints 
shown during service? of hearing lost [sic] of left ear."  
There were additional notations noting that documents were 
attached (including two DD Form 214s and multiple DD Form 
3286s). 

In an August 2007 buddy statement, Sergeant N.O. of the 217th 
Transportation Unit stated that she was stationed with the 
Veteran in support of Operation Iraqi Freedom from 2004 to 
2005.  She noted that they were exposed to significant noise 
from constant mortar attacks and IEDs.  She recalled that the 
Veteran occasionally complained about ringing in his ears and 
headaches.  

A January 2008 addendum to November 2007 VA examination notes 
that after review of audiometric evaluations of record, it 
was the examiners opinion that it was at least as likely as 
not that the Veteran's hearing loss was related to noise 
exposure in military service.

In February 2008, the Veteran submitted March 2007 
audiometric findings from K.J.W., M.S. CCC-A in chart format.  
The diagnosis was slight to mild high frequency sensorineural 
hearing loss in the left ear. 

A July 2008 VA outpatient treatment record notes that the 
Veteran requested an updated audiological evaluation.  On 
evaluation, puretone testing revealed hearing within normal 
limits in the right ear and normal through 3 KHz sloping to a 
moderate high frequency sensorineural hearing loss in the 
left ear.  Speech discrimination scores were 100 percent 
bilaterally.  It was noted that there was no significant 
change in hearing since the last evaluation.

In an October 2008 statement, the Veteran noted that he sent 
in a copy of a hearing report that showed a greater average 
decibel loss than that of prior VA examinations.  He included 
a September 2008 audiometric report from Ear, Nose, and 
Throat Clinics of San Antonio. 
On November 2009 VA examination, puretone thresholds were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
10
15
25
LEFT
10
10
15
25
50

The average puretone thresholds were 13.75 (14) decibels, 
right ear and 25 decibels, left ear.  Speech audiometry 
revealed speech recognition ability of 96 percent in the 
right ear and 94 percent in the left ear.  The examiner noted 
that the Veteran served with a transportation unit in the 
Army and the artillery in the National Guard.  The Veteran 
reported noise exposure from artillery, IEDs, and gunfire.  
He also reported post-service noise exposure from trucks 
while engaging in warehouse and delivery work.  The diagnoses 
were a clinically normal right ear and normal to moderate 
sensorineural hearing loss in the left ear.  The examiner 
noted that there were no significant occupational effects and 
that the effect on daily activities was difficulty 
understanding.  

C. Legal Criteria and Analysis

        Service connection for right ear hearing loss
  
Service connection may be established for disability due to 
disease or injury that was incurred in or aggravated by 
active service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303.  
Service connection may be granted for any disease diagnosed 
after discharge, when all the evidence, including that 
pertinent to service, establishes that the disability was 
incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for a claimed 
disability, there must be: (1) medical evidence of a current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service incurrence or aggravation of a disease 
or injury; and (3) evidence of a nexus between the claimed 
in-service disease or injury and the current disability.  
Hickson v. West, 12 Vet. App. 247, 253 (1999).  The 
determination as to whether these requirements are met is 
based on an analysis of all the evidence of record and an 
evaluation of its credibility and probative value. Baldwin v. 
West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

Service incurrence or aggravation of organic disease of the 
nervous system (to include sensorineural hearing loss) may be 
presumed if such is manifested to a compensable degree within 
a year following a Veteran's discharge from service.  
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 
Hearing loss disability is defined by regulation.  For the 
purpose of applying the laws administered by VA, impaired 
hearing is considered to be a disability when the auditory 
threshold in any of the frequencies 500, 1000, 2000, 3000, 
4000 Hertz is 40 decibels or greater; or when 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. 

When there is an approximate balance of positive and negative 
evidence regarding the merits of an issue material to the 
determination of the matter, the benefit of the doubt in 
resolving each such issue shall be given to the claimant. 
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the 
evidence is assembled, VA is responsible for determining 
whether the evidence supports the claim or is in relative 
equipoise, with the Veteran prevailing in either event, or 
whether a fair preponderance of the evidence is against the 
claim, in which case the claim is denied. Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

Although not reflected on his DD Form 214, the evidence of 
record (including a stressor statement in which the Veteran 
noted he received a Combat Action Badge (CAB) and an official 
recommendation for CAB award) appears to indicate that the 
Veteran may have received a CAB.  Notably, among other 
requirements, a CAB is awarded to soldiers in a non-combat 
MOS that participate in active engagement or being engaged by 
the enemy after September 18, 2001.  See Combat Action Badge 
Information, 
http://www.army.mil/symbols/combatbadges/action.html (last 
visited May 11, 2010).  However, the Board notes that an 
award of a CAB would not be dispositive in this case-
although the Veteran would be afforded the relaxed 
evidentiary standards under 38 U.S.C.A. § 1154(b)-as the 
Veteran does not have a current disability (as will be 
discussed below).    

The threshold question that must be addressed here (as in any 
claim seeking service connection) is whether or not the 
Veteran has a right ear hearing loss disability.  In the 
absence of proof of such disability there is no valid claim 
for service connection for right ear hearing loss.  Brammer 
v. Derwinski, 3 Vet. App. 223, 225 (1992).  

The Veteran's March 2007 and September 2008 private 
audiometry is presented in a chart format which the Board is 
neither competent nor authorized to interpret. Under 
governing regulation, testing of hearing loss disability for 
VA rating purposes must meet specific requirements (to 
include speech discrimination testing in a controlled setting 
using a Maryland CNC word list).  There is no indication that 
the private audiometry was conducted in the manner required 
by regulation.  

While it appears that a right ear hearing loss disability by 
VA standards was shown by puretone threshold audiometry on 
one occasion in service (in September 2007), such findings 
apparently reflected an acute condition; the hearing loss 
disability did not persist (as a right ear hearing loss 
disability by VA standards was not found on VA audiometry on 
either November 2007 or November 2009 examinations).  
Notably, the November 2007 examiner found that right ear 
hearing was within normal limits and the November 2009 
examiner opined that the Veteran had a clinically normal 
right ear.  As a hearing loss disability by VA standards is 
not shown in the right ear at any time during the pendency of 
this claim, the threshold requirement for establishing 
service connection for such disability is not met.

VA adjudicators and the Board are bound by regulation, and 
therefore not authorized to find that there is a hearing loss 
disability unless the requirements in § 3.385 are met.  [The 
appellant is advised that authorized audiometry showing he 
meets the regulatory definition of hearing loss disability in 
38 C.F.R. § 3.385(in the right ear) would be a basis for 
reopening this claim.]

In light of the foregoing, the Board finds that the 
preponderance of the evidence is against this claim.  
Therefore, the benefit of the doubt rule does not apply; the 
claim must be denied.  

        Increased rating for left ear hearing loss

In general, disability evaluations are assigned by applying a 
schedule of ratings that represent, as far as can practically 
be determined, the average impairment of earning capacity.  
38 U.S.C.A. § 1155; 38 C.F.R. §  4.1.  The appropriate 
evaluation for hearing impairment is determined under the 
criteria found in 38 C.F.R. §§ 4.85, 4.86. 

To evaluate the degree of disability from service-connected 
defective hearing Table VI is used to determine a Roman 
numeral designation (I through XI), based on test results 
consisting of puretone thresholds and Maryland CNC test 
speech discrimination scores.  The numeric designations are 
then applied to Table VII to determine the appropriate rating 
for hearing impairment.  Where there is an exceptional 
pattern of hearing impairment (as defined in 38 C.F.R. § 
4.86) the rating may be based solely on puretone threshold 
testing (Table VIA).  38 C.F.R. § 4.85.  

Disability ratings for hearing impairment are derived by a 
mechanical application of the Rating Schedule to the numeric 
designations assigned after audiometric evaluations are 
rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 
(1992).

In a claim for an increased rating, "staged" ratings may be 
warranted if the claim involves the initial rating assigned 
with a grant of service connection.  See Fenderson v. West, 
12 Vet. App. 119 (1999).  

As noted above, testing of hearing loss disability for VA 
rating purposes must meet specific requirements (to include 
speech discrimination testing in a controlled setting using a 
Maryland CNC word list).  The March 2007 and September 2008 
private audiometry is not shown to have been in accordance 
with the governing regulation and the Board is neither 
competent nor authorized to interpret puretone thresholds in 
chart format.  Consequently, such audiometry may not be 
considered in rating the Veteran's hearing loss disability. 

The only audiometry of record during the appeal period 
suitable for rating purposes is that on November 2007 and 
November 2009 VA examinations.  

When the findings on November 2007 and November 2009 VA 
examinations are compared to 38 C.F.R. § 4.85 Table VI, they 
show Level I hearing acuity in the left ear.  Since the right 
ear is not service connected, Level I hearing acuity is used.  
Under 38 C.F.R. § 4.85 Table VII, where there is level I 
hearing in each ear, a noncompensable rating under Code 6100 
is warranted.  No certified audiometry shows an exceptional 
pattern of hearing that would warrant rating the disability 
under the alternate criteria in Table VIA.  38 C.F.R. § 4.85.  

The Board notes that the November 2009 VA examiner 
specifically commented regarding the (occupational and 
social) functional impairment that would be associated with 
hearing loss of the extent shown.  The examiner noted that 
there were no significant occupational effects and that the 
effect on daily activities was difficulty understanding.  
Therefore, further comment by examiners regarding the nature 
of functional impairment associated with the Veteran's 
hearing loss is not necessary, and the VA examination was not 
inadequate.  See Barr, 21 Vet. App. at 303.

In light of the foregoing, the Board concludes that a 
schedular compensable rating for bilateral hearing loss is 
not warranted at any time during the appeal period. 

The Board has also considered whether referral of this matter 
for extraschedular consideration is indicated by the record.  
There is no objective evidence (or allegation) in the record 
of symptoms of and/or impairment due to left ear hearing loss 
that are not encompassed by the rating assigned.  Therefore, 
the schedular criteria are not inadequate.  Furthermore, the 
disability picture presented by the left ear hearing loss is 
not shown to be exceptional; frequent hospitalizations, 
marked interference with employment, or any factors of such 
gravity are not shown.  Accordingly, referral for 
extraschedular consideration is not warranted. 38 C.F.R. 
§ 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008).  

Finally, as there is no indication in the record (or 
allegation) that the Veteran is unemployable due to his left 
ear hearing loss and an April 2007 VA outpatient treatment 
record indicated that the Veteran was employed full-time, the 
matter of entitlement to a total disability rating based on 
individual unemployability is not raised.  See Rice v. 
Shinseki, 22 Vet. App. 447 (2009).   


ORDER

Service connection for right ear hearing loss is denied.  

A compensable rating for left ear hearing loss is denied.




____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs