Citation Nr: 21001056 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-22 277 DATE: January 6, 2021 ORDER A compensable rating for bilateral hearing loss prior to September 24, 2019, is denied. A rating in excess of 10 percent for bilateral hearing loss since September 24, 2019, is denied. Service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from September 1971 to October 1973. 2. Prior to September 24, 2019, bilateral hearing loss was manifested by no worse than Level II hearing acuity in the right ear and Level I hearing acuity in the left ear. 3. Since September 24, 2019, bilateral hearing loss has been manifested by no worse than Level III hearing acuity in the right ear and Level IV hearing acuity in the left ear. 4. A right shoulder disorder, diagnosed as osteoarthritis, was not shown in service, not shown to a compensable degree within one year of service, symptoms not continuous since service, and it is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to September 24, 2019, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, Diagnostic Code (DC) 6100, Tables VI, VII (2020). 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss since September 24, 2019, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.385, 4.3, 4.7, 4.10, 4.85, 4.86, 4.87, DC 6100, Tables VI, VII (2020). 3. A right shoulder disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2018, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In December 2018, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Increased Ratings for Bilateral Hearing Loss Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Ratings for hearing loss disability 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, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VII, which determines the designation based on results of standard test parameters. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation using Table VI or Table VIA, whichever is more beneficial to a veteran. 38 C.F.R. § 4.86. There are two circumstances where exceptional patterns of hearing loss are considered but neither apply in this situation. Therefore, Table VII will be used. Turning to the medical evidence for the first period on appeal, in an October 2012 VA examination, audiometric testing reflected the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 35 40 45 LEFT 30 20 25 45 50 The average puretone threshold was 33.8 dB in the right ear and 35 dB in the left ear. Speech discrimination was 88 percent in the right ear and 96 percent in the left ear. Applying Table VII to the October 2012 examination findings results in numerical designations of Level II in the right ear and Level I in the left ear, which equates to a noncompensable rating. In a November 2012 private examination, audiometric testing reflected the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 15 30 45 LEFT 20 15 20 35 50 The average puretone threshold was 25 dB in the right ear and 30 dB in the left ear. Speech discrimination was 100 percent in the right ear and left ears. Applying Table VII to the November 2012 examination findings results in numerical designations of Level I in the right ear and left ears, which equates to a noncompensable rating. In sum, the medical evidence shows that the right ear hearing loss has been manifested by no worse than Level II hearing acuity and left ear hearing loss has been manifested by no worse than Level I hearing acuity. These findings equate to a noncompensable rating and clinical records do not contradict these findings. Therefore, the medical evidence does not support a compensable rating for bilateral hearing loss prior to September 2019. Turning to the medical evidence for the second period on appeal, in a September 2019 VA examination, audiometric testing reflected the following auditory thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 45 55 65 LEFT 50 45 40 60 60 The average puretone threshold was 46 dB in the right ear and 51 dB in the left ear. Speech discrimination was 80 percent in the right ear and left ears. Applying Table VII to the September 2019 examination findings results in numerical designations of Level III in the right ear and Level IV in the left ear, which equates to a 10 percent rating. In sum, the medical evidence shows that the right ear hearing loss has been manifested by no worse than Level III hearing acuity and left ear hearing loss has been manifested by no worse than Level IV hearing acuity. These findings equate to a noncompensable rating and clinical records do not contradict these findings. Therefore, the medical evidence does not support a rating in excess of 10 percent for bilateral hearing loss since September 2019. 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. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In this regard, the October 2012 examiner specifically noted that the Veteran reported that other people’s speech could become garbled. Further, the September 2019 examiner noted that the Veteran reported hearing different words than what was being said. Based on the above, the Board finds that no prejudice to the Veteran in that the functional effects of his hearing loss disability were adequately addressed by the examiners and are sufficient for the Board to find that referral for an extra-schedular rating is not warranted under 38 C.F.R. § 3.321(b). The Board has also considered the Veteran’s lay statements and testimony that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s hearing loss has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which hearing loss is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by hearing loss and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Service Connection for a Right Shoulder Disorder Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. As an initial matter, osteoarthritis is a chronic disorder under 38 C.F.R. § 3.309. Therefore, both direct and presumptive service connection will be addressed. Turning first to direct service connection, right shoulder osteoarthritis was diagnosed in 2013 and right shoulder pain was diagnosed in 2018. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, the Veteran reported falling on the right shoulder in-service while trying to throw a hook up to a helicopter. However, service treatment records (STRs) are absent of complaints, diagnoses, or treatment of a right shoulder disorder. Specifically, he sought treatment in service for the left knee, feet, and back, among others, but did not report a right shoulder injury. Importantly, the separation examination reflects a normal clinical evaluation of the upper extremities, including strength and range of motion testing. Therefore, the second element of direct service connection is not met, and the medical evidence does not support the claim of direct service connection. Turning to presumptive service connection, the Veteran was discharged from service in 1973 and reported that he was not diagnosed with right shoulder arthritis until 2008, with documentation beginning in 2013. As he was discharged in 1973 and symptoms were not identified until at least 2008, over 30 years later, the medical evidence does not support service connection on a chronic in service or continuity of symptomatology basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. Specifically, the Veteran separated from service in 1973 and did not seek treatment for the right shoulder until 2008. Therefore, this evidence does not support presumptive service connection on a “manifest within one-year from separation” basis, and presumptive service connection is not supported by the medical evidence. The Board has considered the Veteran’s lay statements and testimony that a right shoulder disorder was related to service. While he is competent to report symptoms because this requires only personal knowledge as it came to him through his senses, he is not competent to offer an etiology of this disorder. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28. Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.