Citation Nr: 18159521 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 16-60 207 DATE: December 20, 2018 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to an initial compensable rating for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss did not manifest in-service, or within one year after separation, and is not shown to be causally or etiologically related to an in-service event, injury or disease. 2. For the entire appeal period, the Veteran had no worse than Level II hearing in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1112, 1113, 1116, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.85, 4.86, Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1965 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2016 (left ear hearing loss) and September 2016 (right ear hearing loss) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Generally, to establish service connection a veteran must show: “(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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include bilateral hearing loss, that manifested to a compensable degree within a certain time after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been “shown in service,” there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. To establish the presence of hearing loss for VA compensation purposes, the Veteran must show his right ear hearing loss constitutes a disability by proffering evidence that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 40 decibels or greater; or at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores are less than 94 percent (Maryland CNC Test). 38 C.F.R. § 3.385. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for right ear hearing loss is denied. The Veteran argued that while in service he was exposed to excessive noise. Specifically, the Veteran stated that he was around artillery for “24 hours a day, 7 days a week” while in Vietnam. See October 2016 Correspondence. After leaving Vietnam, the Veteran stated that he was an assistant gunner. Id. A review of the military personnel record shows that the Veteran was an ammo handler and a truck driver. See December 2015 Military Personnel Record. At the outset, the Board notes that the Veteran has a current diagnosis of right ear hearing loss that meets the criteria of 38 C.F.R. § 3.385. See August 2016 C&P Exam. As such, the first element of service connection is met. The Board also concedes that the Veteran was exposed to some degree of noise during active service. What remains for consideration is whether the Veteran’s current right ear hearing loss is related to his in-service noise exposure. A review of service treatment records notes normal ears and drums with no complaints, symptoms, signs, or diagnoses of a right ear hearing loss. The service records show the Veteran affirmatively denied any ear or drum related trouble while in service in the August 1965 entrance examination and the August 1968 separation examination. See December 2015 STR – Medical records. Post-service outpatient treatment records show that the Veteran has a diagnosis of right ear hearing loss in 2015, more than forty-five years after service. See November 2015 Medical Treatment Record – Government Facility. The records also show that the Veteran was afforded a VA examination in February 2016 wherein the examiner diagnosed the Veteran with sensorineural hearing loss of the right ear. The examiner opined that the Veteran’s right ear hearing loss was not at least as likely as not caused by or a result of an event in military service. The examiner explained that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 Hertz (Hz) for the right ear. The examiner noted that the enlistment examination indicated normal hearing prior to military service and the separation examination also indicated normal hearing with no significant shifts in hearing when compared to the enlistment examination. The examiner stated that appropriate conversion was made prior to comparing the enlistment examination to the separation examination as the enlistment examination was conducted prior to November 1967 likely using the ASA standards while the separation examination was conducted after November 1967 likely using the ISO standards. The examiner cited to the Institute of Medicine (2006) that reported that there is insufficient scientific basis to conclude that permanent hearing loss attributable to noise exposure will develop long after the noise exposure. The examiner concluded that due to the reported timing of onset after military service, documented normal hearing with no significant shifts in hearing and denying the presence of hearing loss at the time of the separation exam, it is less likely than not that the Veteran’s current right ear hearing loss is a result of military noise exposure or any other event in military service. Then in the August 2016 hearing loss and tinnitus disability benefits questionnaire (DBQ) the audiologist determined that there was no permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 HZ for the right ear and that the service treatment records indicate that the Veteran had normal hearing at entrance and separation examination. As such, the audiologist opined that the Veteran’s hearing loss was less likely than not caused by or a result of an event in military service. The Board acknowledges the Veteran’s lay statement that military noise exposure caused his right ear hearing loss. However, such an opinion requires technical and medical expertise beyond that of a lay person. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). As stated above, the Veteran’s service treatment records show normal ears and drums in service, and his post-service records show no hearing deficits until 2015, over forty-five years after service. Additionally, the Veteran also reported that he had hearing difficulties about two to three years after he got out of service. See November 2015 Medical Treatment Record – Government Facility. Further, the Board finds compelling the conclusions of the February 2016 VA examiner and August 2016 audiologist that the Veteran’s hearing loss is less likely than not caused by or a result of his military noise exposure. Thus, the Board finds there is no competent evidence of record to provide a nexus between the Veteran’s right ear hearing loss and service. In conclusion, although the Veteran has established a current disability and in-service noise exposure, the preponderance of the evidence establishes that his right ear hearing loss was not manifested during service or for many years thereafter and is not otherwise related to his active service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Increase Rating 2. Entitlement to an initial compensable rating for left ear hearing loss is denied. Disability evaluations 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. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). This practice is known as staged ratings. Id. 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. Evaluations of defective hearing range from noncompensable to 100 percent for service-connected hearing loss. These evaluations are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second. To evaluate the degree of disability from defective hearing, the revised rating schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The regulations provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that 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 is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Here, the Veteran does not exhibit a case of exceptional hearing loss as the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more and the Veteran does not have 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. The assignment of disability ratings for hearing impairment are arrived at by a mechanical application of the numeric designations assigned after audiological evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). At the outset, the Board notes that the Veteran applied for entitlement to service connection for his left ear hearing loss in August 2015. See August 2015 VA 21-526EZ, Fully Developed Claim. In September 2016, service connection for left ear hearing loss was granted at a noncompensable rating. See September 2016 Rating Decision – Narrative. A review of the medical records shows that in November 2015, the Veteran had mild precipitously sloping to severe hearing loss in the 2000 to 8000 Hz with 92 percent word recognition. Then in the February 2016 VA examination, the Veteran exhibited an average decibel level reading of 58 and 92 percent speech discrimination score in the left ear. Based on these findings, using Table VI, the Veteran has Level II hearing in the left ear. As the Veteran is service connected for the left ear only, the non-service connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(g). Applying these results to Table VII indicates that a noncompensable rating is warranted. In the August 2016 DBQ, the Veteran exhibited an average decibel level reading of 55 and 92 percent speech discrimination score in the left ear. Based on these findings, using Table VI, the Veteran has Level I hearing in the left ear. As the Veteran is service connected for the left ear only, the non-service connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(g). Applying these results to Table VII indicates that a noncompensable rating is again warranted. (Continued on the next page)   The Veteran is competent to describe the effects of his hearing loss on his daily functioning. See October 2016 Correspondence. The Board finds his statements to be credible. However, the descriptions of the Veteran’s service-connected hearing loss must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. The Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Accordingly, applying these results to Table VII indicates that a noncompensable rating is warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel