Citation Nr: 1807042 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 10-28 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right ear hearing loss disability. 2. Entitlement to an initial compensable disability rating for a left ear hearing loss disability. REPRESENTATION Appellant represented by: Adam Neidenberg, Attorney-at-Law ATTORNEY FOR THE BOARD L. D. Logan, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to February 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2009 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In the October 2009 rating decision, the Veteran was granted, in pertinent part, service connection for a left ear hearing loss disability, with an initial noncompensable rating, effective January 15, 2009. Additionally, the Veteran was denied service connection for a right ear hearing loss disability and tinnitus. The Veteran submitted a notice of disagreement regarding the denial for service connection for right ear hearing loss and tinnitus and the noncompensable rating for left ear hearing loss. His appeal was perfected in May 2010. The Board remanded the case in June 2014 for further development. During the pendency of this appeal, the RO, in a November 2014 rating decision, granted service connection for tinnitus. Because the Veteran was awarded a complete grant of the benefits sought with respect to his tinnitus, such claim is no longer in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Board notes that the Veteran filed a claim for entitlement to service connection for left leg varicose veins, which was certified to the Board in July 2015, and the Veteran requested a hearing with respect to his appeal of this issue. According to a January 2018 letter from VA, the Veteran was scheduled for a videoconference hearing on January 30, 2018. The hearing was held and the issue will be addressed by the Board in a subsequent decision. The Board also observes that at the beginning of the appeal, the Veteran was represented by attorney, Kenneth LaVan. Thereafter, the Veteran appointed attorney, Adam Neidenberg, as his representative, in a December 2016 VA Form 21-22a, effectively revoking the prior representation by Kenneth LaVan. Accordingly, the Board recognizes Adam Neidenberg as the Veteran's current attorney in connection with these claims. See 38 C.F.R. § 14.631 (f)(1) (2017) (unless a claimant specifically indicates otherwise, the receipt of a new POA executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney.) FINDINGS OF FACT 1. Pure tone auditory thresholds do not meet the criteria to establish that the Veteran has a current right ear hearing loss disability for VA compensation purposes. 2. The Veteran has had, at worst, Level I hearing in his service-connected left ear. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right ear hearing loss disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for an initial compensable rating for a left ear hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matter In this case, neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board is therefore satisfied that there is no prejudice to the Veteran in adjudicating this appeal. Service Connection for Right Ear Hearing Loss The Veteran seeks service connection for a right ear hearing loss disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Showing continuity of symptomatology since service under 38 C.F.R. § 3.303 (b) is an alternative means of linking a claimed disability to service, but is only available for the 'chronic diseases' specifically enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss (organic disease of the nervous system) is considered a chronic disease as listed under 38 C.F.R. § 3.309 (a) and the presumptive service connection provisions of 38 C.F.R. § 3.303 (b) are potentially applicable. See Walker, supra. Impaired hearing will be considered a "disability" for VA compensation purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 dB or greater; when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000 or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The regulations provide that an examination for hearing impairment for VA compensation purposes must be conducted by a state-licensed audiologist and must include a controlled Maryland CNC speech discrimination test and a pure tone audiometry test. See 38 C.F.R. § 4.85 (a). In evaluating claims of service connection for hearing loss, the threshold for normal hearing is from zero to 20 decibels (dB), with higher threshold levels indicating some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The threshold consideration for any service connection claim is the existence of a current disability and the weight of the competent evidence in this case demonstrates that the Veteran does not have current right ear hearing loss. Historically, the Veteran's service treatment records (STRs) are silent for any complaints, treatments, or diagnosis of right ear hearing loss. Moreover, his February 1988 separation examination indicates normal hearing at the time of discharge. VA received the Veteran's claim for service connection for right ear hearing loss in January 2009. The Veteran was afforded a VA audiology compensation examination in July 2009. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 10 15 20 The speech recognition test was 96 percent for the right ear. The examiner opined that the Veteran's right ear hearing was within normal limits. A July 2009 medical addendum confirmed that the Veteran's right ear hearing was within normal limits. The Veteran was afforded an additional VA audiology examination in October 2014. An audiogram was conducted and the pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 15 20 The speech recognition test was 100 percent for the right ear. The examiner opined that the Veteran's hearing was normal in the right ear. The examiner further noted the Veteran's hearing was normal at the July 2009 VA examination and at the time of separation from service. The Board finds the July 2009 and October 2014 VA examination reports to be adequate for VA purposes. They were conducted by a state-licensed audiologist and included a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Based on the adequate objective testing, the VA examiners' opined that the Veteran did not have hearing loss in the right ear for VA purposes. "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). A hearing loss disability is diagnosed primarily on objective clinical findings and audiometric testing; thus, while the Veteran is competent to relate symptoms of right ear hearing difficulty he experiences, he is not competent to diagnose a right ear hearing loss disability because such a diagnosis requires specific medical knowledge and training in audiology and the Veteran is not shown to possess such knowledge. The diagnosis of a hearing loss disability must also be supported by objective clinical findings and audiometric testing. The Board recognizes that the Veteran may have difficulty hearing in the right ear; nonetheless, the objective medical evidence reflects that such difficulty does not rise to the level of a hearing loss disability for VA purposes. Because a right ear hearing loss disability, as defined by the VA regulatory criteria at 38 C.F.R. § 3.385, is not demonstrated in this case, disability benefits are not warranted for right ear hearing loss. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In consideration of the foregoing, the Board finds that a preponderance of the evidence weighs against the claim of service connection for a right ear hearing loss disability and the benefit-of-the-doubt doctrine is, therefore, not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Increased Rating for Left Ear Hearing Loss The Veteran seeks an initial compensable rating for his service-connected left ear hearing loss disability. 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.A. § 1155; 38 C.F.R., Part 4 (2017). 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 (2017). Where there is a question as to which of two disability ratings 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. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the VA Rating Schedule, hearing impairment is evaluated based on audiological testing, including a pure tone audiometry test and the Maryland CNC controlled speech discrimination test. 38 C.F.R. § 4.85. To evaluate the degree of disability from defective hearing, the Rating Schedule establishes eleven auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). The pure tone threshold average is the average of the pure tone thresholds, in decibels, at 1000, 2000, 3000 and 4000 Hz, shown on a pure tone audiometry test. 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Further, when the average pure tone threshold is 30 decibels at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Level. 38 C.F.R. § 4.86(b). As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. § 4.86 in the context of the Veteran's VA examinations have not been shown and that regulation is inapplicable. If impaired hearing is service-connected in only one ear, as applicable here, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of Level I. 38 C.F.R. § 4.85(f). However, if hearing impairment in the service-connected ear is compensable to a degree of 10 percent or more, compensation is payable for hearing impairment in both the service-connected and non-service-connected ears if hearing impairment in the non-service-connected ear is a disability by VA standards. 38 C.F.R. § 3.383(a) (3). As discussed above, hearing impairment was not found to be present in the non-service connected right ear. Turning to the relevant evidence, the Veteran was afforded a VA audiology compensation examination in July 2009. Pure tone threshold levels, in decibels, were as follows: HERTZ Average 1000 2000 3000 4000 RIGHT 15 15 10 15 20 LEFT 28 10 10 50 40 The speech recognition test was 96 percent for the right ear and 96 percent for the left ear. The Veteran's pure tone threshold average for the right ear was 15dB, with a speech recognition ability of 96 percent. Because the right ear is not service-connected, it must be assigned a Level I hearing acuity using Table VI. 38 C.F.R. § 4.85(f). In the service-connected left ear, the Veteran's pure tone threshold average was 28, with a speech recognition ability of 96 percent, which results in a Level I hearing acuity using Table VI. Applying the Roman numeral designation of Level I in the right ear and Level I in the left ear to Table VII, the result is a noncompensable (0 percent) rating for the service-connected left ear hearing impairment. See 38 C.F.R. § 4.85, Table VII, DC 6100. Thereafter, the Veteran was afforded an additional VA audiology examination in October 2014. An audiogram was conducted and the pure tone thresholds, in decibels, were as follows: HERTZ Average 1000 2000 3000 4000 RIGHT 18 20 15 15 20 LEFT 40 25 20 60 55 The speech recognition test was 100 percent for the right ear and 96 percent for the left ear. As discussed above, the non-service connected right ear is assigned a Level I hearing acuity using Table VI. In the left ear, the Veteran's pure tone threshold average was 40 dB, with a speech recognition ability of 96 percent, which results in a Level I hearing acuity using Table VI. As such, the application of the Ratings Schedule establishes that a noncompensable rating for the service-connected left ear hearing loss is warranted under DC 6100, Tables VI, VII (2017). Accordingly, a higher rating is not warranted during the period on appeal based on the July 2009 and October 2014 VA audiometric results. In addition to the medical evidence, the Board considered the Veteran's lay statements that his hearing loss disability warrants a higher rating because of his inability to hear well. The Veteran is competent to describe his hearing difficulties. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran's description of his service-connected disability must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the Rating Schedule. Lendenmann, 3 Vet. App. 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. In Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court held that, relevant to VA audiological examinations, 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. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, the VA audiologists addressed the functional effects of hearing loss by noting that the Veteran reported that when people talked to him, he needed to focus on their lips. The Board finds the functional effects of the Veteran's hearing loss disability are adequately addressed in the record. Based on the results of the VA audiological examinations discussed above, and in the absence of any additional medical evidence showing a more severe hearing disability, a compensable evaluation is not warranted. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for a compensable disability rating for a left ear hearing loss disability must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Finally, the Board notes that neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Service connection for a right ear hearing loss disability is denied. An initial compensable disability rating for a left ear hearing loss disability is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs