Citation Nr: 19154530 Decision Date: 07/15/19 Archive Date: 07/15/19 DOCKET NO. 18-48 658 DATE: July 15, 2019 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to a compensable disability rating for service-connected left ear hearing loss is denied. FINDINGS OF FACT 1. At no time during the current appeal period has the Veteran had right ear hearing loss for VA compensation purposes. 2. The Veteran’s nonservice-connected right ear is assigned Level I hearing impairment, and audiometric testing for the service-connected left ear hearing loss shows, at most, Level II hearing impairment, resulting in a noncompensable rating. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. § 1110, 1112, 1113, 1131 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.385 (2018). 2. The criteria for a compensable rating for service-connected left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.27, 4.85; Diagnostic Code 6100 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1982 to June 1992. Service Connection For Right Ear Hearing Loss Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, such as sensorineural hearing loss, are subject to presumptive service connection if manifest to a compensable degree within one year from service separation even though there is no evidence of such disease in service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1112, 1113; 38 C.F.R. § 3.307(a)(3), 3.309(a). A hearing loss disability for VA compensation purposes is defined by regulation and impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran asserts that he has right ear hearing loss caused by in-service noise exposure from a generator used to power a missile launcher and chaparral. Service treatment records are negative for right ear hearing loss. A September 2016 VA audiologic examination report recorded puretone thresholds for the Veteran’s right ear, in decibels, at 500, 1000, 2000, 3000, and 4000 Hertz (Hz) as follows: 20, 25, 25, 35, and 35, respectively. Using the Maryland CNC Test, the speech recognition score for the right ear was 100 percent. The Veteran reported that the overall functional impairments from his hearing loss include difficulty understanding speech, especially in noise; difficulty hearing on the telephone; and having to raise the volume of his television. The results of the examination do not reflect hearing impairment in the right ear that meets the criteria to be considered a disability for VA purposes. 38 C.F.R. § 3.385. The Board finds that the Veteran does not have right ear hearing loss for VA compensation purposes. In making this determination, the Board assigns significant weight to September 2016 VA examination. The VA audiologic examination report shows auditory thresholds that do not exceed 40 decibels at any frequency, 26 decibels for at least three frequencies, or speech recognition scores less than 94 percent. 38 C.F.R. § 3.385. No evidence of record indicates that the Veteran has right ear hearing loss for VA compensation purposes. Accordingly, the evidence is against finding that the Veteran has a right ear hearing loss disability at any time during the current appeal period. To the extent that the Veteran asserts that he does in fact have right ear hearing loss, the objective clinical testing outweighs his lay opinion, as audiometric testing is required to determine whether there is hearing loss for VA purposes compared to a lay assertion on the matter. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed Cir 2007). The Board does not doubt the credibility of the Veteran, as he can attest to factual matters of which he had first-hand knowledge. However, the VA examination results are of more probative value than his lay statements. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board acknowledges the examiner’s opinion that the Veteran’s hearing loss is related to his in-service noise exposure. However, pursuant to 38 C.F.R. § 3.385, the evidence of record fails to meet the criteria for right ear hearing loss for VA compensation purposes, at any point during the current appeal period. The Veteran has also not presented or identified existing audiometric testing results that meet the requirements of that regulation. As such, service connection cannot be granted for hearing loss of the Veteran’s right ear. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement is satisfied when a claimant “has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,” McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Veteran’s claim for service connection for right ear hearing loss is denied. Increased Rating For Service-Connected Left Ear Hearing Loss Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In cases where the evaluation of hearing loss is at issue, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Specifically, evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent eleven categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent eleven categories of decibel loss based on the pure tone audiometry test. The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to pure tone decibel loss. For example, with the percentage of discrimination of 70 and an average pure tone decibel loss of 64, the numeric designation level is “V” for one ear. The same procedure will be followed for the other ear. 38 C.F.R. § 4.85(b). The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the poorer hearing and the vertical column appropriate to the numeric designation level for the ear having the better hearing. For example, if the better ear has a numeric designation level of “V,” and the poorer ear has a numeric designation level of “VII,” the percentage evaluation is 30 percent. 38 C.F.R. § 4.85(e), Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone thresholds of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz or puretone thresholds of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event; or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that the symptoms of his service-connected left ear hearing loss are better represented by a compensable disability rating. As an initial matter, the Board notes that the Veteran is only service-connected for hearing loss of his left ear. Pursuant to 38 C.F.R. § 4.85(f), if impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. However, if impaired hearing is service-connected in only one ear, the impairment in both ears will be considered in rating the disability if the impairment in the service-connected ear is to a degree of 10 percent or more and the impairment in the nonservice-connected ear qualifies as a disability under 38 C.F.R. § 3.385; 38 C.F.R. § 3.383(a)(3). For the left ear hearing loss to be considered 10 percent disabling, it must reach Level X or XI (which are Roman Numeral designations for hearing loss of a severity that it would equate to a 10 percent rating when the nonservice-connected ear is assigned Level I hearing impairment). However, the Veteran’s left ear hearing loss results in no more than Level II hearing impairment. Thus, for the entire period on appeal, his nonservice-connected right ear is assigned a Level I hearing impairment designation. On the September 2016 VA audiologic examination report, recorded puretone thresholds for the Veteran’s left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz (Hz) as follows: 20, 55, 90, and 100, respectively. Using the Maryland CNC Test, the speech recognition score for the left ear was 96 percent. The average puretone threshold for the left ear was 66 decibels. The examiner diagnosed the Veteran with sensorineural hearing loss in his left ear. As previously noted, the Veteran reported that the overall functional impairments from his hearing loss include difficulty understanding speech (especially in noise), difficulty hearing on the telephone, and the need to raise the volume of his television. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected left ear hearing loss at any time during the appeal period. Applying the clinical findings of the September 2016 VA audiological examination to Table VII, a zero percent evaluation, but no higher, is warranted. Specifically, the findings of the September 2016 evaluation translate to Level II hearing loss in the left ear when applied to Table VI of the rating schedule. When combined with the assigned Level I hearing loss for the nonservice-connected right ear, this level of hearing loss warrants a zero percent rating and no higher under Table VII of the rating schedule. Therefore, a compensable disability evaluation is not warranted based upon this evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85. Further, an exceptional hearing loss pattern has not been shown in the Veteran’s left ear. 38 C.F.R. § 3.386. Throughout the appeal period, the Veteran—including his representative—have asserted that the Veteran’s service-connected left ear hearing loss has worsened. The Board has also considered the various lay statements from the Veteran attesting to the impact of his hearing loss, e.g., his difficulty understanding speech, hearing on the telephone, and having to raise the volume of his television. However, the Veteran and his representative, while competent to report symptoms associated with hearing loss, are not competent to report that the Veteran’s hearing acuity is of sufficient severity to warrant a higher (compensable) evaluation under Diagnostic Code 6100, because such an opinion requires medical expertise (i.e., training in evaluating hearing impairment), which the Veteran and his representative have not been shown to have. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the medical evidence of record to be more probative. To the extent the Veteran contends that his symptoms are not contemplated by the schedular criteria, the Board points out that his reported symptoms are essentially well-recognized as the natural effect of decreased hearing, which is what the rating criteria are designed to compensate. The Board does not discount the difficulties the Veteran has with his hearing loss. However, the Board must base its determination on the results of the audiological examinations of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Neither the Veteran nor his 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) (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). Accordingly, based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for the service-connected left ear hearing loss. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against this claim, that doctrine is not helpful to him. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Trowers, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.