Citation Nr: 21064254 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-05 832 DATE: October 19, 2021 ORDER Entitlement to service connection for left ear hearing loss is granted. Entitlement to a compensable disability rating for bilateral, previously right ear, hearing loss is denied. FINDINGS OF FACT 1. Resolving any reasonable doubt in favor of the Veteran, the Veteran's left ear hearing loss is etiologically related to his active service. 2. The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level III in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria for entitlement to a compensable disability rating for bilateral hearing loss 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran was afforded a virtual hearing before the undersigned veterans law judge (VLJ). A transcript of the hearing is associated with the Veteran's claims file. Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2020). 1. Entitlement to service connection for left ear hearing loss Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). In general, service connection requires (1) evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 382 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease or injury diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Alternatively, for the showing of chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. §§ 3.303 (b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Continuity of symptomology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. However, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the lay person is competent and does not otherwise require specialized medical training and expertise to do so; i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify."). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. at 498 (Fed Cir. 1996). 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts entitlement to service connection for left ear hearing loss is warranted. Specifically, the Veteran contends that his current left ear hearing loss is due to hazardous noise exposure as a tank commander and range officer. See August 2021 Hearing Transcript. During the August 2021 hearing, the Veteran's representative pointed out that the Veteran is already service-connected for right ear hearing loss based on hazardous noise exposure. Id. VA considers impaired hearing to be a disability when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. For service connection, in-service noise exposure need not be the only source of acoustic trauma; it must only be a contributing source. The absence of in-service evidence of hearing loss disability during a veteran's period of active duty is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Competent evidence of a current hearing loss disability (i.e., one meeting the requirements of section 3.385, as noted above), and a medically sound basis for attributing such disability to service, may serve as a basis from a grant of service connection for hearing loss disability. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran is competent to testify he has decreased hearing acuity. The Veteran, however, is not competent to establish a left ear hearing loss disability for VA purposes, as this is a medical question that must be based on audiometric testing pursuant to 28 C.F.R. § 3.385. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). 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, incurrence, or disease. The Veteran underwent an audiometer testing as a part of his entrance examination in March 1967. His results revealed his hearing was normal for VA purposes. His puretone decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 0 N/A 5 LEFT 5 5 0 N/A 5 The Veteran underwent audiometer testing as a part of his separation examination in February 1970. His results revealed his hearing was normal for VA purposes. His puretone decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT -5 -5 0 N/A 15 LEFT 0 -5 -10 N/A 0 The Veteran has submitted a July 2016 private audiological examination and opinion. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT N/A 10 10 15 45 LEFT N/A 15 10 30 55 Speech audiometry revealed speech recognition ability of 78 percent in the right ear and of 78 percent in the left ear. The private audiologist noted right ear mild to moderately severe hearing loss. The private audiologist stated that chances are at least 50 percent or greater that the Veteran's bilateral hearing loss is related to service. The private audiologist reasoned that the Veteran was in the 100th Division Tank Firing Range and Third Infantry stationed in Germany. The Veteran was afforded a VA examination in October 2016. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 35 45 LEFT 15 15 15 30 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The average decibel loss was 26 in the right ear and 28 in the left ear. The Veteran reported to the VA audiologist that he has to concentrate and really listen to people who speak softly and turn the volume up on his television. In January 2017, an addendum VA medical opinion was obtained. The VA examiner opined that the Veteran's left ear hearing loss was less likely than not caused by or a result of an event in military service. In support of this opinion, the VA examiner reasoned that the Veteran's May 1968 audiological examination and February 1970 separation examination both showed hearing loss within normal limits from 500 to 400 Hz for each ear with no major threshold shifts. The Board notes that the VA examiner did not discuss any conceded hazardous noise exposure in service. The Veteran has submitted a July 2021 private audiological examination and opinion. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 30 55 LEFT 5 20 20 45 65 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 76 percent in the left ear. The average decibel loss was 26 in the right ear and 31 in the left ear. The private audiologist noted right ear mild to moderately severe hearing loss. The private audiologist stated that the Veteran's extensive noise exposure during service caused his bilateral hearing loss. In considering the evidence of record under the laws and regulations above, and affording the Veteran the benefit of the doubt, the Board finds that service connection for left ear hearing loss is warranted. First, the audiometric test results of record during the appeal period do show the Veteran has bilateral sensorineural hearing loss with auditory thresholds of 40 decibels or greater, or 26 decibels or greater for at least three of the frequencies 500, 1000, 2000, 3000, or 4000. 38 C.F.R. § 3.385. Thus, the competent evidence of record establishes that the Veteran has bilateral hearing loss, specifically left ear hearing loss that meets the VA criteria for disability. The evidence of record also supports a finding that the Veteran experienced in-service noise exposure. The Veteran's military occupational specialty (MOS) in service was a tank unit commander. The Board notes that the Veteran is presumed to have been exposed to acoustic trauma. See January 2015 Rating Decision. Thus, the question in the current appeal is one of nexus. In his August 2021 hearing, the Veteran testified that his hearing loss started in service due to hazardous noise exposure as a Ranger Officer. The Board has considered the Veteran's statements and finds him competent to report his hearing loss symptoms and exposure to noise in service. Layno v. Brown, 6 Vet. App. 465 (1994). However, the determination of whether the Veteran's current hearing loss is related to in-service noise exposure is a complex medical question that requires audiological expertise. Jandreau v. Nicholson, 492 F.3d. 1372 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316. The October 2016 and January 2017 VA examiners opined that the Veteran's left ear hearing loss is less likely than not incurred in or caused by his service. However, the July 2016 and July 2021 private audiologists opined that the Veteran's left ear hearing loss is due to his hazardous noise exposure in service. All audiologists reviewed the Veteran's medical records, conducted audiological examinations of the Veteran, and provided reasoned conclusions for their opinions. Thus, the overall evidence appears to be in relative equipoise as to whether the Veteran's current left ear hearing loss is related to service. Resolving reasonable doubt in favor of the Veteran, service connection is warranted for left ear hearing loss. 38 U.S.C. § 5107 (b). 2. Entitlement to a compensable disability rating for bilateral, previously right ear, hearing loss The Veteran asserts entitlement to a compensable disability rating for right ear hearing loss. With the Board's grant of service connection for left ear hearing loss, the Board has reframed the issue on appeal as entitlement to a compensable rating for bilateral hearing loss. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected right ear hearing loss is currently evaluated as noncompensable, effective October 2014, under 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran contends that his hearing has gotten worse, and he is entitled to a compensable disability rating for his right ear hearing loss. In evaluating service-connected hearing impairment, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. Testing for hearing loss is conducted by a state-licensed audiologist, including a controlled speech discrimination test (Maryland CNC). The evaluation is based upon a combination of the percent of speech discrimination and the puretone threshold average which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § § 4.85. Table VII in the schedule is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear, the horizontal rows representing the ear having better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is indicated where the row and column intersect. Table VIa is used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § § 4.86. See 38 C.F.R. § § 4.85 (c). When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) 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. See 38 C.F.R. § § 4.86 (a). 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 from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. See 38 C.F.R. § § 4.86 (b). The Veteran was afforded a VA examination in April 2016. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 15 40 LEFT 0 10 10 25 45 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The average decibel loss was 18 in the right ear and 23 in the left ear. The audiometry test results equate to a Level I hearing loss in the Veteran's right ear and a Level I hearing loss in the Veteran's left ear. Where hearing loss is at Level I in the right ear and Level I in the left ear, a non-compensable rating is the appropriate rating under Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran was afforded a VA examination in October 2016. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 15 35 45 LEFT 15 15 15 30 50 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear. The average decibel loss was 26 in the right ear and 28 in the left ear. The audiometry test results equate to a Level I hearing loss in the Veteran's right ear and a Level I hearing loss in the Veteran's left ear. Where hearing loss is at Level I in the right ear and Level I in the left ear, a non-compensable rating is the appropriate rating under Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran has submitted a July 29, 2021 private audiological examination and opinion. The Veteran's puretone thresholds, in decibels, and Maryland CNC results were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 30 55 LEFT 5 20 20 45 65 Speech audiometry revealed speech recognition ability of 76 percent in the right ear and of 76 percent in the left ear. The average decibel loss was 26 in the right ear and 31 in the left ear. The private audiologist noted right ear mild to moderately severe hearing loss. These audiometry test results equate to a Level III hearing loss in the Veteran's right ear and a Level III hearing loss in the Veteran's left ear. Where hearing loss is at Level III in the right ear and Level III in the left ear, a non-compensable rating is the appropriate rating under Table VII. 38 C.F.R. § 4.85. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. (Continued on the next page) Consideration has been given to the functional effects of the Veteran's bilateral hearing loss. The Veteran reports difficulty hearing soft voices, hearing the television, and distinguishing certain words. His statements are competent and credible. However, in light of the Court's holdings in Martinak v. Nicholson, 21 Vet. App. 447, 454 (2007) and Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Veteran's inability to hear or understand speech or to hear other sounds in various contexts have been sufficiently measured during the VA examinations and such functional effects are contemplated by the schedular rating criteria. The Veteran's VA examination reports and private examinations represent the best evidence for deciding the claim the evidence that contain comprehensive audiometric testing sufficient for rating the disability. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. 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 v. Derwinski, 1 Vet. App. 49 (1990). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. C. Slaughter, 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.