Citation Nr: 21001054 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-27 548 DATE: January 6, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to a compensable rating for left ear hearing loss prior to August 29, 2014 is denied. Entitlement to a disability rating of 40 percent for bilateral hearing loss from August 29, 2014 to June 17, 2019 is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that right ear hearing loss began during active service or is otherwise related to an in-service injury or disease. 2. Prior to August 29, 2014, the Veteran’s left ear hearing loss was manifest by hearing acuity of no worse than Level VI. 3. From August 29, 2014 to June 17, 2019, the Veteran’s bilateral hearing loss was manifest by hearing acuity of Level XI in the left ear and no worse than Level V in the right ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to a compensable rating for left ear hearing loss prior to August 29, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for entitlement to a disability rating of 40 percent for bilateral hearing loss from August 29, 2014 to June 17, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the January 1960 to April 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were last before the Board in March 2020, where they were remanded for additional development. Although the Veteran is in receipt of compensation for bilateral hearing loss from August 29, 2014, payment is based on 38 C.F.R. § 3.383, which permits payment for a nonservice-connected paired organ under certain circumstances. As service connection has not actually been established for right ear hearing loss, that issue remains in appellate status and will be addressed herein. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). SERVICE CONNECTION 1. Entitlement to service connection for right ear hearing loss Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service, and hearing loss becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) 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. “[W]hen audiometric test results at a veteran’s separation from service do not meet the regulatory requirements for establishing a ‘disability’ at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.” Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The Veteran contends that his right ear hearing loss is related to his service. As an initial matter, the Board finds the Veteran has a current hearing loss disability in the right ear pursuant to 38 C.F.R. § 3.385, as shown by the April 2013 VA examination. Thus, the question becomes whether the Veteran’s right ear hearing loss is related to service. The Board concludes that, while the Veteran has a current diagnosis of right ear hearing loss, and evidence shows that in-service noise exposure occurred, the preponderance of the evidence weighs against finding that the Veteran’s right ear hearing loss disability began during service or is otherwise related to an in-service injury, event, or disease. Treatment records show the Veteran was not diagnosed with right ear hearing loss until April 2013, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of difficulty hearing while on the telephone intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of right ear hearing loss. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the October 2013 VA examiner opined that the Veteran’s right ear hearing loss is not at least as likely as not related to an in-service injury, event, or disease, including in-service noise exposure. The rationale was: There were no significant threshold shifts or onset of hearing loss noted in the right ear during military service. The veteran separated in 1978. A VA examination completed on 11/25/96 showed that his right ear hearing sensitivity remained within normal limits. There is nothing in the medical or scientific literature that would support the contention for a long delayed onset of hearing loss as a result of noise exposure. The Institute of Medicine (2006) has determined there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. The IOM panel concluded that, based on their current understanding of auditory physiology, a prolonged delay in the onset of noise-induced hearing loss is “unlikely.” See October 2013 Addendum Opinion. 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). In sum, there is no competent and probative evidence of record establishing that the Veteran’s right ear hearing loss is related to his service. Accordingly, the preponderance of the competent and probative evidence is against the Veteran’s claim, and service connection for right ear hearing loss is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. 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). INCREASED RATING Service connection for left ear hearing loss was established in a December 1996 rating decision. The Veteran filed the current claim for an increased rating in December 2012. He contends that his hearing loss disability is worse than currently rated. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. 38 C.F.R. § 4.86(a). When the average pure tone 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 in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Each ear is considered separately. Compensation is payable for combinations of hearing loss in one ear that is service connected and the nonservice-connected hearing loss in the other ear as if both disabilities were service connected, provided the service-connected hearing loss is compensable to a degree of 10 percent or more (i.e., Level X or XI) and the nonservice-connected hearing loss is not the result of the Veteran's own willful misconduct and meets the criteria 38 C.F.R. § 3.385. 38 C.F.R. § 3.383(a)(3). 2. Entitlement to a compensable rating for left ear hearing loss prior to August 29, 2014 An April 2013 VA examination reveals that the Veteran reported difficulty hearing without hearing aids and difficulty hearing on the telephone. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score was unable to be tested. The Veteran’s pure tone thresholds, in decibels, were as follows: April 2013 HERTZ 1000 2000 3000 4000 Avg LEFT 30 75 90 90 71 Because the Veteran’s Maryland CNC Word List speech recognition score was unable to be tested, but an exceptional pattern of hearing impairment pursuant to 38 C.F.R. § 4.86(b), the pure tone thresholds results will be applied to Table VIA. Applying the results to Table VIA yields a numeric designation of Level VI in the left ear, which is then elevated to Level VII pursuant to 38 C.F.R. § 4.86(b). Where hearing in the service-connected ear is Level VII and the other ear is not service connected, a noncompensable evaluation is assigned under Table VII. 38 C.F.R. § 4.85, Diagnostic Code 6100. As the left ear hearing loss does not meet the criteria for Level X or Level XI, the provisions of 38 C.F.R. § 3.383 are not for application during this period. The Board notes that a VA treatment record from December 2012 revealed pure tone thresholds better than or equal to those on the April 2013 VA examination, and does not support a compensable rating. The Board has considered the lay evidence of record when adjudicating this claim, including the Veteran’s reports of difficulty hearing without hearing aids. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the ratings assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). In sum, the preponderance of the probative evidence is against the claim of entitlement to a compensable rating for left ear hearing loss prior to August 29, 2014. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. 3. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss from August 29, 2014 to June 17, 2019 The Veteran contends that he is entitled to a higher rating for the period on appeal. An August 29, 2014 treatment record contains audiometric testing in graph form which appears to reveal that the Veteran’s pure tone thresholds, in decibels, were as follows: Aug. 2014 HERTZ 1000 2000 3000 4000 Avg Speech test RIGHT 50 55 60 70 59 68 LEFT 60 95 100 105 90 20 Although speech scores were reported in a VA treatment record, it is unclear as to whether the test conducted was the Maryland CNC Word List speech test. However, the RO considered the speech scores in assigning the 30 percent evaluation. Thus, the Board will resolve doubt in the Veteran’s favor and conclude that, in this case, the VA outpatient testing utilized the Maryland CNC. Applying the results to Table VI yields Level XI in the left ear and Level V in the right ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level XI for the left ear to Table VII, equates to a 40 percent disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85. An exceptional pattern of hearing impairment pursuant to 38 C.F.R. § 4.86(a) was shown in the left ear. Applying the results to Table VIA yields Level VIII impairment in the left ear, which is less favorable. Based on the evidence above, a rating of 40 percent, but no higher, for the bilateral hearing loss is warranted from August 29, 2014. The Board has considered the lay evidence of record when adjudicating this claim, including difficulty hearing. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, supra. As noted above, the functional impact that the Veteran describes is contemplated by the rating criteria. Doucette, 28 Vet. App. 366. The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the ratings assigned. See Rossy, 29 Vet. App. at 145. In sum, the preponderance of the probative evidence is against the claim for a compensable rating for hearing loss prior to August 29, 2014 and in excess of 40 percent from that date to June 17, 2019. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert, 1 Vet. App. 49. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.