Citation Nr: 18157946 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-60 371 DATE: December 13, 2018 ORDER 1. Entitlement to service connection for left ear hearing loss is denied. 2. Entitlement to a compensable rating for right ear hearing loss is denied. FINDINGS OF FACT 1. A left ear hearing loss disability was not manifested in service or within one year following the Veteran’s separation from service, and the preponderance of the evidence is against a finding that his current left ear hearing loss disability is etiologically related to his service. 2. At no time during the pendency of the claim is the Veteran’s right ear hearing acuity shown to have been worse than level IV. CONCLUSIONS OF LAW 1. Service connection for left ear hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. A compensable rating for right ear hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.85, 4.85, 4.86 Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 1971 to January 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 Department of Veterans Affairs (VA) rating decision (that granted service connection for right ear hearing loss, rated 0 percent effective September 11, 2015, and denied service connection for left ear hearing loss). 1. Entitlement to service connection for left ear hearing loss is denied. Service connection may be granted for a disability due to disease or injury that was incurred or aggravated by active service. 38 U.S.C. § 1110, 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (1) a present claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases (to include sensorineural hearing loss (SNHL) as an organic disease of the nervous system) may be presumed to be service connected if manifested to a compensable degree within a specified period following separation from service (one year for organic disease of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, 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 the preponderance of the evidence is against the claim, where the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when speech recognition using the Maryland CNC Test is less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s military occupational specialty (MOS) was supply specialist; he received a M-16 Marksman badge. On February 1971 service separation exam, audiometry showed that puretone thresholds (converted from ASA to ISO (ANSI) units) were: HERTZ 500 1000 2000 3000 4000 Left 35 5 5 X 20 On November 1972 service separation examination, audiometry showed that puretone thresholds in decibels were (in ISO units): HERTZ 500 1000 2000 3000 4000 Left 15 5 5 5 10 Service treatment records (STRs) contain no mention of complaints, diagnosis, or treatment pertaining to hearing loss. His ears were normal on service separation examination. On December 2015 audiological examination, audiometry confirmed that the Veteran has bilateral hearing loss. The examiner opined that the Veteran’s left ear hearing loss is not related to his service. The examiner explained he had normal hearing sensitivity in his left ear on his entrance and separation examinations and [during service] did not experience a significant threshold shifts reflecting a decrease in hearing acuity. The examiner also noted the Veteran’s extensive post-service occupational noise exposure. On December 2016 VA Form 9, the Veteran reported he attempted to reenlist in the military but failed a hearing test. The record does not contain any further medical opinion regarding the etiology of the Veteran’s hearing loss. It is not in dispute that the Veteran has a bilateral hearing loss disability (SNHL is shown by official audiometry). He served as a supply specialist and received a rifle marksman badge; it may reasonably be conceded that he was exposed to noise during service. What remains necessary to substantiate the claim of service connection for left ear hearing loss is competent evidence that the current left ear hearing loss disability is related to his service/noise trauma therein. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The evidence does not show that a left ear hearing loss disability was manifested in service or within a year following the Veteran’s discharge from service. The earliest diagnosis of hearing loss in the file was in December 2015. Accordingly, service connection for such disability on the basis that it became manifest in service (or on a chronic disease presumptive basis under 38 U.S.C. § 1112) is not warranted. Because SNHL (as an organic disease of the nervous system) is listed in 38 C.F.R. § 3.303(a), the Board has considered whether service connection for left ear hearing loss is warranted based on a continuity of symptomology theory of entitlement. However, continuity of symptomology is not shown. The Veteran is not competent to establish a diagnosis of SNHL disability (or continuity of symptoms of a hearing loss disability) by his own recollections of remote events (particularly when a report of onset in service is contradicted by service separation examination audiometry, which found normal hearing acuity). Hearing loss disability is defined in a governing regulation, and must be demonstrated by regulation-specified testing. See 38 C.F.R. §§ 3.385, 4.85. There is no documentation in the record of a hearing loss disability shown by appropriate audiometry until decades after service (in December 2015). Such a lengthy post-service interval before a hearing loss disability was shown weighs heavily against a finding of continuity. Service connection for left ear hearing loss based on continuity of symptomology is not warranted. Service connection for a hearing loss disability may still be established by competent evidence that the hearing loss, first documented many years after service, is etiologically related to service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has presented no such evidence. Whether a current hearing loss disability may, in the absence of evidence of onset in service and continuity of symptomology since, be related to remote service/exposure to noise trauma therein is a medical question. See Jandreau v. Nicholson, 492 F.3d 1373, 1377 (Fed. Cir. 2007). The Veteran is a layperson, and his own opinion in the matter is not competent evidence; he does not cite to supporting medical opinion, text, or treatise. See Jandreau, 492 F.3d at 1377. The only competent (medical) evidence in the record regarding a nexus between the Veteran’s current left hearing loss and his service is in the opinion of the December 2015 VA examiner who opined that the Veteran’s left ear hearing loss disability is not likely related to his military service/noise trauma therein. The examiner is a medical professional competent to offer the opinion, and the opinion reflects familiarity with the Veteran’s medical history, is supported by rationale that cites to accurate factual data (STRs showing no significant puretone threshold shift in the left ear during service), and identifies a likely postservice etiological factor (occupational noise) for the development of left ear hearing loss. The examiner identified the basis for distinguishing the right ear from the left (a significant puretone threshold shift in the right ear, but not the left. The opinion is probative evidence, and without competent evidence to the contrary, is persuasive. The preponderance of the evidence is against this claim; the appeal seeking service connection for bilateral hearing loss must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. A compensable rating for right ear hearing loss is denied. Ratings for hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of controlled speech discrimination tests in combination with average hearing threshold. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIA of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIA is used when speech discrimination tests are inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when puretone thresholds at each of the four specified frequencies are 55 decibels or more. Another occurs when the puretone threshold at 1000 Hertz is 30 decibels or less and the puretone threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86. On December 2015 VA audiological examination, audiometry revealed that puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 20 25 50 70 75 Right ear speech recognition was 80 percent. Under both Table VI the right ear hearing acuity is level IV. An exceptional patter of hearing loss (as defined in 38 C.F.R. § 4.86) is not shown; therefore, Table VIA is not for consideration. The Veteran reported difficulty hearing the television and following daily conversations The Board observes that although the Veteran does have a hearing loss disability (as defined in 38 C.F.R. § 3.385) in his nonservice connected left ear, the provisions of 38 C.F.R. § 3.383 (a)(3) do not apply, because his right ear hearing loss is not compensable (i.e., Levels X or XI). The nonservice connected left ear hearing loss is assigned a hearing level acuity Level I in determining the appropriate rating for the right ear hearing loss. 38 C.F.R. § 4.85 (f). Under Table VI, when hearing loss in one ear is Level I and in the other ear Level IV, a 0 percent rating is warranted. As the assignment of a disability rating for hearing impairment is derived by mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to be assigned. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI-VII, Code 6100. The findings on official audiometry fall squarely within the parameters of the criteria for a 0 percent rating, and that rating reflects the reported functional impairment (difficulty hearing television and conversations). Accordingly, the preponderance of the evidence is against the claim for a compensable rating for right ear hearing loss, and the appeal in the matter must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55-56. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Naumovich, Associate Counsel