Citation Nr: 18149260 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-42 389 DATE: November 9, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to an initial compensable rating for left ear hearing loss, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of hearing loss of the right ear. 2. The Veteran’s left ear hearing loss disability is manifested by pure tone threshold averages and speech recognition scores that corresponded to no more than Level II impairment. 3. The Veteran’s left ear hearing loss manifests in symptoms and functional effects that are contemplated by the schedular rating criteria. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1112, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017). 2. The criteria for a compensable rating for left ear hearing loss, to include on an extraschedular basis, are not met. 38 U.S.C. §§ 1110, 5103(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.321(b)(1) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Navy from June 1977 to June 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) 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 present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Organic diseases of the nervous system, such as sensorineural hearing loss, are included in the list of chronic diseases under 38 C.F.R. § 3.309(a). The Veteran contends that he has hearing loss in his right ear due to the requirements of his occupational specialty in the United States Navy, specifically that he was required to listen to loud, unfiltered static through headphones without hearing protection. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. For purposes of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. The Board must deny entitlement to service connection for right ear hearing loss based on a lack of a current disability for VA purposes. The Veteran underwent an authorized audiological evaluation in March 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 10 15 25 Speech audiometry revealed a speech recognition ability of 98 percent in the right ear. These findings do not reflect a hearing loss disability for VA compensation purposes, as none of the auditory thresholds were 40 decibels or greater, auditory thresholds in at least three of the frequencies were not 26 decibels or greater, and the speech recognition score was not less than 94 percent. The Veteran underwent another authorized audiological evaluation in June 2016, and those pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 20 25 30 35 Speech audiometry revealed a speech recognition ability of 96 percent in the right ear. Again, these findings do not reflect a hearing loss disability for VA compensation purposes, as none of the auditory thresholds were 40 decibels or greater, auditory thresholds in at least three of the frequencies were not 26 decibels or greater, and the speech recognition score was not less than 94 percent. The Board recognizes the Veteran’s reports of having hearing difficulties in his right ear, including having pure tone thresholds of 25 decibels at 6000 Hertz and 50 decibels at 8000 Hertz, difficulties understanding people, and having to repeat himself. The Board also recognizes the statements from the Veteran’s wife in which she notes that the Veteran turns up the television volume or will misunderstand what she says. See February 2015 Notice of Disagreement. However, while the Veteran is competent to describe having hearing problems and his wife is competent to report her observations concerning the Veteran’s hearing problems, they do not possess the required education, training, and expertise to detect whether the Veteran’s right ear hearing difficulties satisfy the pure tone and/or speech discrimination criteria of 38 C.F.R. § 3.385 to qualify as a right ear hearing loss disability for VA purposes. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, while the June 2016 audiogram showed the Veteran has some high-frequency hearing loss of his right ear at 6000 and 8000 Hertz, this hearing loss does not meet the specific elements to be considered a disability for VA purposes under 38 C.F.R. § 3.385. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131. In the absence of a diagnosis of a current right ear hearing loss disability, service connection for right ear hearing loss must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 2. Increased Rating A. Schedular Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran seeks entitlement to an initial compensable rating for left ear hearing loss. Service connection for left ear hearing loss was established by an April 2014 rating decision, at which time a noncompensable rating was assigned, effective from July 26, 2013. The basis for evaluating defective hearing is the impairment of auditory acuity as measured by pure tone threshold averages, within the range of 1000 to 4000 Hertz and speech discrimination using the Maryland CNC word recognition test. 38 C.F.R. § 4.85. Section 4.85(a) requires that an examination for hearing loss be conducted by a state-licensed audiologist, and must include both a controlled speech discrimination test (Maryland CNC test) and a pure tone audiometry test. Examinations must be conducted without the use of hearing aids. Pure tone threshold averages are derived by dividing the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 by four. Id. The pure tone threshold averages and the Maryland CNC test scores are given a numeric designation, which are then used to determine the current level of disability based upon a pre-designated schedule. Tables VI and VII in 38 C.F.R. § 4.85. Under these criteria, the assignment of a disability rating is a “mechanical” process of comparing the audiometric evaluation to the numeric designations in the rating schedule. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1993). The Veteran underwent a VA audiological evaluation in March 2014. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 20 20 55 65 The average decibel loss was 40 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the left ear. The Veteran underwent another VA audiological evaluation in June 2016. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 25 60 70 The average decibel loss was 43 in the left ear. Speech audiometry revealed a speech recognition ability of 96 percent in the left ear. The findings from the June 2016 examination continue to reflect Level II hearing acuity in the left ear under Table VI. Under Table VII, utilizing these designations, a compensable rating is not warranted. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. The Board acknowledges the contentions put forth by the Veteran regarding his hearing difficulties and the impact his service-connected hearing loss has on his ability to hear in situations with background noise, watching television, as well as his difficulties hearing high frequency sounds. As a layperson, the Veteran is competent to report symptoms related to his hearing. However, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. Thus, the findings of the audiological examination are more probative than the lay contentions as to the extent of hearing loss. In finding such, the Board reiterates that the Veteran is competent to report the symptoms related to his loss of hearing. He is also credible to the extent that he sincerely believes he is entitled to a higher rating. However, the competent and credible lay evidence is outweighed by the competent and credible medical evidence that evaluates the true extent of his disability based on objective data coupled with the lay complaints. As previously noted, disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numerical designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100; Lendenmann, 3 Vet. App. At 345. Thus, when applying the audiological examination test results described above, the Board is compelled to find against an entitlement to a compensable disability rating under the Rating Schedule. Moreover, the Board notes that a noncompensable rating does not mean that the Veteran’s hearing is by any means normal. The initial grant of service connection acknowledged that he has hearing loss, while the assigned rating reflects that the degree of disability of his hearing loss does not meet VA’s criteria for a compensable rating. In the July 2018 appellate brief, the Veteran, through his representative, argued that if an increased rating could not be granted, then the claim should be remanded for a new VA examination because the last one was old. The Board acknowledges that the most recent VA audiological examination was conducted in June 2016; however, there is no indication that the Veteran’s left ear hearing loss has worsened from the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (VA’s duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted); see also 38 C.F.R. § 3.327(a) (2017). The Veteran has not asserted so, as noted by the August 2016 VA Form 9, in which he argued that the VA erred because the schedular criteria do not contemplate his hearing loss at 6000 and 8000 Hertz. Finally, while the June 2016 audiogram showed the Veteran has some high-frequency hearing loss of his left ear at 6000 and 8000 Hertz, this hearing loss does not meet the specific elements under the schedular rating criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385. B. Extraschedular Rating The Veteran raised the issue of extraschedular consideration for his service-connected hearing loss in the left ear as he asserts that high-frequency hearing loss is not adequately contemplated by the rating schedule. Extraschedular consideration involves a three-step analysis. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017); Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe the Veteran’s disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a Veteran’s disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a Veteran’s level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If an exceptional disability picture including such factors as marked interference with employment or frequent periods of hospitalization exists, the matter must be referred to the Director for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Turning to the evidence of record, the Board will first determine whether the schedular criteria reasonably describe the Veteran’s disability level and symptomatology. During the March 2014 VA examination, the Veteran reported difficulty hearing the televisions, in restaurants, and misunderstanding people at work and at home. As discussed above, the Veteran also submitted additional lay statements in the February 2015 notice of disagreement, specifically that he has trouble comprehending others speech, especially women and children, and where background noise is present. His wife stated that the Veteran’s hearing has worsened, his work evaluations reflect the “frustration that he has had dealing with more and more female co-workers,” and that he now has “a problem understanding people with foreign accents.” Finally, in the June 2016 VA examination, the Veteran reported he misunderstands what is said to him and has to ask his wife what people say to him, as well as problems hearing in social settings. In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court found that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding" and that "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." These are the precise complained of symptoms of the Veteran. As found by the Court in Doucette, these symptoms are contemplated by the schedular rating criteria and do not require extraschedular evaluation. Based on consideration of all the evidence of record, the Board finds referral for an extraschedular rating is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ohlstein, Law Clerk