Citation Nr: 18123724 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-29 856 DATE: August 2, 2018 ORDER Service connection for hearing loss of the left ear is denied. An initial compensable rating for hearing loss of the right ear is denied. FINDINGS OF FACT 1. Hearing loss of the left ear was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. 2. Hearing loss of the right ear is currently manifested by average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 33 decibels and speech recognition ability 98 percent correct. CONCLUSIONS OF LAW 1. The criteria for service connection for hearing loss of the left ear have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for an initial compensable rating for hearing loss of the right ear have not been met for any period. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to December 1978. 1. Service connection for hearing loss of the left ear The Veteran contends that service connection should be established for left ear hearing loss. He asserts that during service he worked with jet aircraft engines where he was exposed to significant noise trauma. Notably, the Veteran has already established service connection for right ear hearing loss based on his exposure to loud noises in service; therefore, his in-service event is not in question. Instead, 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. The Board concludes that, while the Veteran has a current diagnosis of left ear hearing loss, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left ear sensorineural hearing loss began during service or is otherwise related to an in-service injury, event, or disease, to include his exposure to noise trauma therein. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Review of the Veteran’s service treatment records (STRs) shows that he was afforded several audiometric evaluations while on active duty. While he did work around jet aircraft engines where he was exposed to noise trauma, the audiometric testing during service consistently showed that air conduction threshold levels in the left ear while he was on active duty were within normal limits. This includes the audiometric testing performed at the time of the Veteran’s examination for separation from service. VA treatment records show the Veteran was not diagnosed with sensorineural hearing loss in the left ear until 2014, decades after his separation from service. He has not asserted that he has suffered from left ear hearing loss continuously since service; rather, it is his contention that his current hearing loss is related to his exposure to loud noises in service. However, even if he had asserted continuity of symptomatology, while the Veteran would be competent to report having experienced symptoms of hearing loss since service, he would not be competent to provide a diagnosis in this case or determine that these symptoms were manifestations of sensorineural hearing loss. The issue is medically complex, as it requires the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). An examination was conducted by VA in December 2014. At that time, a VA examiner opined that the Veteran’s left ear hearing loss was not at least as likely as not related to an in-service injury, event, or disease, including noise trauma in service. The rationale was that the audiograms in service, which were extensively reviewed, showed no evidence of hearing loss in the left ear despite a demonstration of hearing loss in the right ear. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is significant that this is the sole medical opinion in the record. The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for left ear hearing loss, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. An initial compensable rating for hearing loss of the right ear Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For evaluation of hearing impairment, examinations are conducted using the controlled speech discrimination test together with the results of pure tone audiometry testing. A numeric designation of impaired efficiency is then assigned based upon the results of these tests and a percentage evaluation is reached by correlating the results for each ear. 38 C.F.R. § 4.85 and Tables VI, VIa, and VII. When the puretone threshold at each of the four specified frequencies 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. 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 form either Table VI or Table Via, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. An audiometric evaluation was conducted for compensation purposes for the VA in December 2014. At that time, the Veteran’s organic hearing acuity was shown to be as follows: Hertz 1000 2000 3000 4000 Right ear 10 15 45 60 Thus, his hearing acuity was manifested by average pure tone thresholds at 1,000, 2,000, 3,000, and 4,000 hertz of 33 decibels in the right ear. Speech recognition ability was 98 percent correct in the right ear. The assignment of a disability rating for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). In the instant case, the application of the rating schedule to the pertinent facts demonstrates that a compensable evaluation is not warranted for a unilateral hearing loss. The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (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. Review of the December 2014 examination report shows that the Veteran’s hearing loss impacted his ability to function in that he reported difficulty hearing women and higher pitches in the presence of background noise and he felt that he needed to frequently ask people to repeat themselves. The Board finds that this and the rating currently assigned adequately addresses the functional impairment of the Veteran’s right ear hearing loss, particularly in light of a VA outpatient treatment report dated in October 2014 that showed him to be only a borderline candidate for amplification. It is further noted that the Veteran has not contended that he should be considered for extraschedular consideration under the provisions of 38 C.F.R. § 3.321, nor is this raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Yancy v. McDonald, 27 Vet. App. 484 (2016). Instead, the Veteran has suggested that the December 2014 VA examination was not an accurate portrayal of his hearing loss disability because it was “conducted in a perfectly quiet booth which is not the real world.” See April 2015 notice of disagreement. However, there is no indication that the use of a silent booth was improper, inappropriate, or a deviation from standard audiological testing practices. Notably, 38 C.F.R. § 4.82 provides for specific testing methodology to be employed in determining hearing impairment. See also Martinak v. Nicholson, 21 Vet. App. 447 (2007) (holding that the Secretary’s policy for conducting audiological examinations in a sound-controlled room is valid). This long-standing methodology was properly administered in the instant case, and there is no evidence that the testing was misinterpreted. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for increased rating for right ear hearing loss, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio