Citation Nr: 1800679	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  16-18 548	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial compensable rating for left ear hearing loss.

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. N. Shannon, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Navy from August 1957 to August 1959.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that granted service connection for left ear hearing loss, which was assigned an initial noncompensable disability evaluation, effective November 17, 2013 and denied service connection for bilateral hearing loss.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  For the period on appeal, the Veteran's left ear hearing loss has been productive of no worse than Level I acuity in the left ear.

2.  The Veteran does not have a right ear hearing disability for the purposes of VA compensation.

CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for a left ear hearing loss disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.85, 4.86 (2017), Diagnostic Code 6100 (2017).

2.  The criteria for service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.385 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board.").

The Veteran and his representative contend the December 2014 VA audiology examination was inadequate and therefore the Veteran is entitled to a new examination.  The Veteran and his representative contend the December 2014 VA examiner did not state a conclusion.  The Veteran's representative highlighted the VA examiner's  rationale that "hearing loss and tinnitus cannot be resolved without resorting to mere speculation.  I need the claim folder or additional data in VBMS to be loaded."  See December 2017 Appellate Brief at page 1.  A new medical opinion, but not examination, was requested and received by VA in January 2015.  This VA examiner reviewed the Veteran's claim folder, service treatment records, and, the December 2014 VA audiology examination and VBMS records.  Neither the Veteran, nor his representative contend there are any inadequacies in the medical opinion provided in January 2015.  Thus, the Board finds that no further examinations are necessary regarding the above issues and that VA has met its duty to assist.

Increased Rating (Left Ear Hearing Loss)

Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).  In the case of an initial rating following the grant of service connection, there is consideration of staged ratings to account for changes in the disability during the period beginning with the effective date of service connection.  Fenderson v. West, 12 Vet. App. 119 (1999).

If the evidence for and against a claim is in equipoise, the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 C.F.R. § 3.102.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017).

Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test.  38 C.F.R. § 4.85 (2017).

The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination.  See 38 C.F.R. § 4.85 (2017).  "Puretone threshold average" as used in Tables VI and VIA is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four.  This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIA.  38 C.F.R. § 4.85(d) (2017).

Table VI, "Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns).  The Roman numeral designation is located at the point where the row and column intersect.  38 C.F.R. § 4.85(b) (2017).

Table VIA, "Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average," is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average.  Table VIA is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85(c) (2017).

Table VII, "Percentage Evaluations of Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear.  The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and the column intersect.  38 C.F.R. § 4.85(e) (2017).

Special provisions apply in instances of exceptional hearing loss.  See 38 C.F.R. § 4.86 (2017).  When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a) (2017). 

Also, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear is evaluated separately.  38 C.F.R. § 4.86(b) (2017).

The Board initially notes that the Veteran is service connected for left ear hearing loss only.  Pursuant to 38 C.F.R. § 4.85 (f), if impaired hearing is service connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I.  However, if impaired hearing is service connected in only one ear, the impairment in both ears will be considered in rating the disability if the impairment in the service-connected ear is to a degree of 10 percent or more and the impairment in the nonservice connected ear qualifies as a disability under 38 C.F.R. § 3.385, 38 C.F.R. § 3.383.  In this regard, in order for the left ear hearing loss to be considered 10 percent disabling, it must reach Level X or XI (which are the Roman Numeral designations for hearing loss of a severity that it would equate to a 10 percent rating when the nonservice connected ear is assigned Level I hearing impairment).  However, as will be discussed below, the Veteran's left ear hearing loss results in no worse than Level I hearing impairment.  As such, for the entire appeal period, the Veteran's nonservice connected right ear is assigned Level I hearing.

The Veteran received an audiological examination in December 2014.  At that time, the Veteran reported he "has to ask what" when conversing with other people.  See December 2014 Audiogram at page 4.  The results of that audiological examination, as measured by a puretone audiometry test, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
20
15
20
30
30
LEFT
20
15
25
35
45

The average puretone threshold in the left ear was 30 decibels.  Speech audiometry revealed a speech recognition ability of 96 percent in the left ear.

When combined, the puretone thresholds and the speech recognition ability translated to a manifestation of Level I in the right ear and a manifestation of Level I in the left ear.  38 C.F.R. § 4.85, Table VI.  When the numeric designation of Level I is combined with the numeric designation of Level I, the overall level of hearing impairment is commensurate with a noncompensable rating.  38 C.F.R. § 4.85, Table VII.

The preponderance of the evidence is against compensable initial rating at any time since the effective date of service connection.  There is no evidence to suggest that during the period of appeal, a compensable rating for a left ear hearing loss disability is warranted.  The impairment associated with this disability is contemplated by the rating criteria, which considers the average impairment resulting from a service connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

For these reasons, an initial compensable rating for the left ear is not warranted.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.85, 4.86, Diagnostic Code 6100 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service Connection (Right Ear Hearing Loss)

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).

For the purposes of applying the laws administered by VA, impaired hearing will be 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 (2016).  When audiometric test results at a Veteran's separation from service do not meet the requirements of 38 C.F.R. § 3.385, a veteran may nevertheless establish service connection for current hearing disability by submitting medical evidence that the current disability is causally related to service.  The threshold for normal hearing is 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests an organic disease of the nervous system, such as sensorineural hearing loss, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2017).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness.  See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2) (2017).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017).

The Veteran was afforded a VA audiology examination in December 2014; the results of which were discussed above.  The results of the examination do not reflect a right ear disability for VA purposes.  The first element of service connection has not been met and therefore, no further discussion of the remaining elements is necessary.  Based on the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a bilateral hearing loss disability.
In reaching this conclusion, the Board has considered the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017); Gilbert, supra.


ORDER

1.  Entitlement to an initial compensable rating for left ear hearing loss is denied.

2.  Entitlement to right ear hearing loss is denied.




____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs