Citation Nr: 18148640 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-01 795 DATE: November 8, 2018 ORDER New and material evidence has been received that is sufficient to reopen the service connection claim for a right ear hearing loss disability. Service connection for a right ear hearing loss disability is denied. A compensable rating for a service-connected left ear hearing loss disability is denied. FINDINGS OF FACT 1. In the August 2010 rating decision, the Regional Office (RO) denied the Veteran’s service-connection claim for a right hearing loss disability on the grounds that the Veteran did not have hearing impairment that met the criteria for a disability for VA purposes. 2. The Veteran did not appeal the RO’s August 2010 rating decision within one year, nor was any new and material evidence received within one year. 3. Additional evidence received since the RO’s August 2010 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a right hearing loss disability, and raises a possibility of substantiating the claim. 4. The preponderance of evidence is against a finding that the Veteran has a current hearing loss disability of the right ear for VA purposes. 5. The probative medical evidence of record demonstrates that throughout the appeal period, the Veteran’s left ear hearing loss has manifested in no worse than Level I hearing impairment. CONCLUSIONS OF LAW 1. The August 2010 rating decision denying entitlement to service connection for a right hearing loss disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received since the August 2010 rating decision sufficient to reopen the service-connection claim for a right hearing loss disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to service connection for a hearing loss disability of the right ear have not been satisfied. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 4. The criteria for a compensable rating for hearing loss of the left ear have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1994 to November 1997. 1. RIGHT EAR A brief discussion of the procedural history in this case is warranted. In the August 2010 rating decision, the RO denied entitlement to service connection for a right ear hearing loss disability on the grounds that that the Veteran did not have hearing impairment that met the criteria for a disability for VA purposes. The Veteran did not appeal the August 2010 rating decision, nor was any new and material evidence received within one year. As a result, the August 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. A claim that has been finally adjudicated, such as the August 2010 rating decision in this case, may only be reopened by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. “New and material evidence” can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In October 2012, the Veteran submitted a claim to reopen the August 2010 rating decision that denied service connection for a right ear hearing loss disability. See October 2012 VA Form 21-4138. The Veteran indicated his hearing loss had worsened since the last audiological evaluation, and he referenced VA treatment records that included audiology consults and the issuing of hearing aids. See April and May 2012 VA treatment records. This evidence was not before adjudicators when the Veteran’s claim was denied in August 2010, and it is not cumulative or redundant of the evidence of record at the time of that decision. Additionally, it relates to the unestablished facts necessary to substantiate the claim for service connection, and raises a reasonable possibility of substantiating the claim. As new and material evidence has been received since the August 2010 rating decision, the previously denied claim of entitlement to service connection for a right ear hearing loss disability is considered reopened. There is no prejudice to the Veteran in proceeding with an adjudication of the Veteran’s right ear hearing loss claim on its merits, as the agency of original jurisdiction (AOJ) reopened and adjudicated the issue on the merits in the first instance prior to certification to the Board. See, e.g., the March 2016 Supplemental Statement of the Case. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a period of war or after December 31, 1946, certain chronic disabilities, including sensorineural hearing loss, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends he has a current right ear hearing loss disability that is related to in-service noise exposure. See April 2010 VA Form 21-526. As noted above, the Veteran was afforded a VA audiological evaluation in July 2010, and was denied entitlement to service connection in the August 2010 final rating decision because he did not demonstrate a hearing loss disability of the right ear. For VA purposes, impaired hearing shall be considered a disability when the thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are 40 decibels or greater; or when the thresholds for at least three of these frequencies 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. On the July 2010 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 35 35 LEFT 30 25 25 25 40 Speech audiometry on the July 2010 VA evaluation revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. For the period on appeal, in May 2012, the Veteran requested to reopen his claim for service connection for a right hearing loss disability, and submitted VA treatment records in support of his claim that demonstrate complaints of worsening hearing loss and issuance of hearing aids. The Veteran was afforded another VA audiological evaluation in November 2012. On the November 2012 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 25 35 LEFT 20 20 15 25 45 Speech audiometry on the November 2012 VA evaluation revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. Based on the results of the November 2012 VA audiological evaluation, the Veteran did not meet the criteria for a hearing loss disability under 38 C.F.R. § 3.385. In January 2016, the Veteran submitted a private audiological report in support of his appeal for service connection for a right ear hearing loss disability. See January 2016 audiometric report. Only the graphic representation of the audiogram was included in the record for the January 2016 private audiological evaluation reported below, with no numeric interpretation provided. However, as the audiometric results were conveyed in a straightforward graph, the chart may be examined to determine the numeric values of the pure tone levels for adjudication purposes. Kelly v. Brown, 7 Vet. App. 471 (1995). On the private audiological evaluation in January 2016, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 45 55 70 85 LEFT 85 70 85 90 90 The speech recognition score reported on the January 2016 private evaluation for the right ear and left ear was 100 percent. Although the private evaluation is unclear as to whether the Maryland CNC test was utilized during the speech discrimination test, if the Board were to presume that the Maryland CNC test was used, the Veteran does not have a speech recognition score indicating impaired hearing that meets the criteria to be considered a disability under 38 C.F.R. § 3.385. Based on the hearing impairment indicated by the private audiological evaluation from January 2016, the Veteran was afforded another VA examination in March 2016. On the March 2016 VA audiological evaluation in, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 30 35 LEFT 25 25 25 30 40 The March 2016 VA examiner did not report speech recognition scores, indicating that the use of the speech discrimination test was not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores, etc. 38 C.F.R. § 4.85. The right ear hearing loss reported on the March 2016 VA audiological evaluation does not meet the criteria to be considered a disability under 38 C.F.R. § 3.385. The Veteran did not demonstrate thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz of 40 decibels or greater, or thresholds for at least three of these frequencies of 26 decibels or greater. The Federal Circuit Court has recognized the Board’s authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board finds the July 2010, November 2012 and March 2016 VA examination audiometric test results to be the most accurate assessments of the level of severity of the Veteran’s right ear hearing loss. Indeed, all three test results are consistent with each other, at times both prior to and after the Veteran’s January 2016 private assessment. Test results from the January 2016 assessment identify a one-time substantially worsened hearing acuity, that was not identified upon examination just three months later. There is no indication that the VA evaluations produced test results that were invalid, or that they did not sufficiently address the Veteran’s disability picture at times both before and after the January 2016 private examination. In short, when looking at the all the evidence of record as a whole, the Board affords the January 2016 private audiometric test results little to no probative value. While the Board in no way calls into question the Veteran’s observation of diminished hearing acuity of the right ear, the severity of the hearing loss has not been shown to reach the level required to qualify as a disability by VA regulation by the probative evidence of record. The preponderance of the evidence is against a finding that the Veteran has a current right ear hearing loss disability for VA purposes, and thus, fails to meet the first requirement for service connection. Therefore, the benefit of the doubt rule does not apply, and the claim is denied. 2. LEFT EAR Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities, and are intended to represent the average impairment of earning capacity resulting from the disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenman, 3 Vet. App. at 349. As set out in the Rating Schedule, the results of controlled speech discrimination tests (Maryland CNC) and pure tone audiometry tests are charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. The United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this case, service connection for hearing loss of the left ear was established by an August 2010 rating decision, and the Veteran was assigned a noncompensable disability rating. The Veteran’s hearing loss disability of the left ear was rated in accordance with 38 C.F.R. § 4.86, Diagnostic Code 6100. For the same reasons the Board did not assign probative weight to the January 2016 private audiological evaluation in the Veteran’s claim for service connection for a right ear hearing loss disability, the Board does not find the January 2016 evaluation probative in evaluating the level of hearing impairment for the Veteran’s left ear hearing disability. Indeed, the Board finds the November 2012 and March 2016 VA audiological evaluations to be competent and credible evidence in measuring the current level of severity of the Veteran’s left ear hearing impairment. For the November 2012 VA audiological evaluation, adding the sums of the Hertz levels from 1000-4000 and dividing by four, results in an average pure tone threshold of 26 in the left ear. The March 2016 VA examiner reported speech recognition score of 100 percent for the left ear. Under Table VI, the level of hearing impairment based on the Veteran’s pure tone threshold average and speech recognition score of the left ear is assigned a numeric designation of Level I. When impaired hearing is service connected in only one ear, the non-service-connected ear will be assigned a numeric designation of Level I. Those levels, in turn, warrant a noncompensable rating under Table VII. For the March 2016 VA audiological evaluation, adding the sums of the Hertz levels from 1000-4000 and dividing by four, results in an average pure tone threshold of 30 in the left ear. The March 2016 VA examiner did not report speech recognition scores, indicating that the use of the speech discrimination test was not appropriate because of inconsistent scores. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85 and Table VIA, the level of hearing impairment based only on the Veteran’s pure tone threshold average of the left ear is assigned a numeric designation of Level I. When impaired hearing is service connected in only one ear, the non-service-connected ear will be assigned a numeric designation of Level I. Those levels, in turn, warrant a noncompensable rating under Table VII. The Board in no way calls into question that the Veteran was exposed to hazardous noise as he describes in the performance of his duties as an infantryman in the Army, and that he has experienced hearing loss since this exposure. Indeed, such findings were the bases for the award of service connection for the Veteran’s hearing loss disability of the left ear. However, as discussed above, hearing loss is evaluated using a mechanical application of the rating criteria to certified test results. The objective results upon audiometric testing do not demonstrate hearing loss of the left ear severe enough to warrant the assignment of a compensable rating. Additionally, the Board has considered the functional impact of the Veteran’s left hearing loss disability, which he described as difficulty hearing speech, especially during meetings and on the telephone. See March 2016 VA audiological evaluation. The Court has specifically held that the schedular criteria for rating hearing loss contemplates the functional effects of difficulty hearing and understanding speech, such as those reported by the Veteran. Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). (Continued on Next Page) The preponderance of the evidence is against the Veteran’s claim for a compensable rating for a hearing loss disability of the left ear. Therefore, the benefit of the doubt rule does not apply, and the claim is denied. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Mask, Associate Counsel