Citation Nr: 18154769 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 16-50 863 DATE: December 4, 2018 ORDER Entitlement to service connection for left ear hearing loss is denied. Entitlement to an initial compensable disability rating for right ear hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran has a left ear hearing loss for VA purposes at this time. 2. The Veteran’s hearing loss is manifested by Level I hearing in the right ear. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385. 2. The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1986 to August 1992. This matter is on appeal from a March 2016 rating decision, which denied entitlement to service connection for left ear hearing loss and granted entitlement to service connection for right ear hearing loss with a noncompensable disability rating, effective June 16, 2015. 1. Entitlement to service connection for left ear hearing loss is denied. The Veteran contends that she has left ear hearing loss related to in-service noise exposure. 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 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); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For service connection to be granted for hearing loss, the requirements for service connection as defined in 38 C.F.R. § 3.385 need not be shown by the results of audiometric testing during a claimant’s period of active service. 38 C.F.R. § 3.385; Ledford v. Derwinski, 3 Vet. App. 87 (1992). However, impaired hearing is only considered to be a disability for VA purposes if the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Therefore, the threshold question that must be addressed is whether the Veteran’s claimed hearing loss qualifies as a disability, as defined by VA. In the absence of proof of a present disability, there is no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). After a thorough review of the Veteran’s service medicals records, post-service VA treatment records, and a VA-contracted audiological examination, the Board finds that the Veteran’s hearing in her left ear does not meet the regulatory definition to constitute a hearing loss disability. While the Veteran has complained of hearing loss, there is no objective evidence of loss of hearing in the left ear that constitutes a disability. 38 C.F.R. § 3.385. The Board notes that the claims file contains service medical records, with routine audiological examinations of the Veteran’s hearing near the time of entrance and separation from active service. However, a close review of these objective results shows no instance in which the Veteran’s hearing loss in the left ear rose to a level that would constitute a hearing loss disability under VA regulations. The Board notes that since the Veteran’s separation from service, post-service medical records also do not include any objective audiological examinations that show a hearing acuity in the Veteran’s left ear severe enough to be considered a current hearing disability under VA regulations. At a March 2016 VA-contracted audiological examination, pure-tone thresholds for the left ear, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 35 25 25 25 30 Speech audiometry results using the Maryland CNC for the left ear was 100 percent for the March 2106 examination. The Board finds that the objective result from the March 2016 audiological examination do not show the requisite levels of pure-tone thresholds or speech discriminations to constitute a current disability. Hearing loss is considered a disability only when any of those above noted categories reach 40 decibels or higher, or at least three of those categories reach 26 decibels or greater. 38 C.F.R. § 3.385. The Veteran’s hearing acuity in her left ear has not been shown to reach a level considered to be a disability under VA regulations. The Veteran’s speech discrimination remains above the threshold to be considered a disability. Therefore, the Board finds that without a current disability of left ear hearing loss, the claim for service connection cannot prevail. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board realizes that the Veteran has asserted that she has a left ear hearing loss disability, and that the cause of her left ear hearing loss is similar to that of her right ear, which has been service-connected. The Board notes that competent medical evidence of record includes an opinion that she has a degree of left ear hearing loss which is related to service. Hensley v. Brown, 5 Vet. App. 155 (1993). While the Board acknowledges that the Veteran may be competent to state that her hearing acuity in her left ear is less than it was before, or as it was prior to service, she is not competent to speak to the specific level or severity of any hearing loss as it relates to achieving audiometric guidelines. For the purposes of applying the laws and regulations administrated by VA, the level of impairment is determined by a mechanical application of the objective criteria of VA regulations. Here, the objective criteria are not met by the Veteran’s hearing acuity, and therefore, the Veteran’s left ear hearing loss cannot be considered a disability for which service connection may be granted. Therefore, the Board finds the evidence from the March 2016 audiological examination to be most probative in determining the proper diagnosis regarding the Veteran’s claimed left ear hearing loss. The Board further notes that a review of the additional medical evidence of record reveals no additional objective testing requisite to constitute hearing loss disability in the left ear. Consequently, as the preponderance of evidence is against the finding of a current disability of left ear hearing loss for VA purposes, and the Veteran’s claim of service connection for hearing loss must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an initial compensable disability rating for right ear hearing loss is denied. By rating action of March 24, 2016, the Regional Office granted service connection for right ear hearing loss and assigned an initial noncompensable evaluation, under Diagnostic Code 6100 for hearing loss, effective June 16, 2015. The Veteran disagrees with the initial rating assigned. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. In October 2016, the Veteran submitted a VA Form 9 in which she reported that her constant deployments and exposure to aircraft noise “caused a physical impact of negativity on my hearing today.” In March 2016, the Veteran was afforded a VA-contracted audiological examination. Results from the audiogram reflect that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 25 30 20 30 LEFT 35 25 25 25 30 Puretone threshold averages were 26.25 decibels for the right ear and 26.25 decibels for the left ear. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 100 percent in the left ear, using Maryland CNC tests. Based on those results, with the utilization of Table VI, the Veteran has Level I hearing impairment in both the right ear and the left ear. Under Table VII, a designation of Level I hearing in the right ear and Level I hearing in the left ear yields a 0 percent evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. As described above, the audiological findings from the March 2016 audiogram, when analyzed under Table VII, equate to a noncompensable disability rating for the Veteran’s right ear hearing loss. 38 C.F.R. § 4.85, Diagnostic Code 6100. At no time during the appeal period has the Veteran’s hearing loss disability been shown to rise to the level of symptomatology required to support a higher rating. The evaluation for hearing loss is based on objective testing. Thus, the objective VA examination report does not support an assignment of a disability rating in excess of what the Regional Office has already awarded — a noncompensable rating for the entirety of the appeal period. As such, a noncompensable disability rating is warranted. The Board has considered the Veteran’s contentions regarding her claim for a higher rating. Although the Board does not doubt the sincerity of the Veteran’s belief regarding the severity of her hearing loss, as a lay person without the appropriate medical training or expertise, she simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board in no way discounts the difficulties the Veteran experiences as a result of her hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion and must make a finding on the rating schedule based on the results of the audiological evaluations of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel