Citation Nr: 21065415 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-57 203 DATE: October 26, 2021 ORDER Entitlement to a compensable evaluation for the Veteran's service-connected left ear hearing loss is denied. FINDING OF FACT Throughout the pendency of this appeal, the evidence of record shows no worse than Level I hearing acuity in the Veteran's left ear. CONCLUSION OF LAW The criteria for establishing entitlement to a compensable evaluation for the Veteran's service-connected left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§.3.102, 3.159, 3.385, 4.86, 4.85, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active-duty service with the United States Navy from March 2006 to June 2007, from March 2015 to November 2015, and from August 2018 to September 2019. In February 2020, he testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Pursuant to a March 2020 Board decision, this matter was remanded for additional development to include obtaining updated VA and private treatment records and scheduling the Veteran for a new VA examination. As the requested development is now complete, this matter has been returned to the Board for appellate consideration. Duty to Assist and to Notify VA is required to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2020). Copies of compliant VCAA notices were located in the claim's file. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Thus, upon careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Ratings, Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2020). The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2020). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a compensable evaluation for the Veteran's service-connected left ear hearing loss The Veteran contends that the current severity of his left ear hearing loss warrants a compensable evaluation. Specifically, in his notice of disagreement, dated March 2016, the Veteran asserted that an evaluation of 20 percent disabling is warranted. However, as discussed in more detail below, the preponderance of the evidence does not support his claim. In this case, the Veteran's left ear hearing loss has been evaluated as non-compensable pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100 (2020). Under applicable laws and regulations, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Specifically, evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85 (2020). Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) or more, Table VI or Table Via is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a) (2017). Additionally, when the pure tone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86 (b) (2020). If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. In the present case, the Veteran is only service-connected for hearing loss of the left ear service connection is not in effect for hearing loss of the right ear. As such, for evaluation purposes below, the right ear will be assigned the numerical designation of I. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. § 4.1, 4.2 (2020). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. Review of the record indicates that the Veteran underwent an audiological consultation in November 2015. The diagnostic report noted complaints of impaired hearing and difficulty hearing in noisy environments. Steroid medications were prescribed to treat his symptoms however, no significant improvement was achieved. An otoscopic examination of ear canals failed to document any abnormalities. In the left ear, audiological findings revealed normal hearing at 250-2000 hertz (Hz) and sloping to moderately-severe sensorineural hearing loss beginning at 3000 Hz. No hearing loss was observed in the right ear. Due to the noted findings, the Veteran was prescribed a RIC (receiver in canal) hearing aid with an open dome for the left ear only. On the authorized audiological evaluation in February 2016 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 0 5 10 10 LEFT 0 5 10 65 60 Pure tone threshold averages were 6 dB for the right ear and 35 dB for the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 percent in the left ear. Applying the above audiological findings to Table VI at 38 C.F.R. § 4.85, the Veteran's left ear is assigned a numerical designation of I. As service connection is not in effect for right ear hearing loss a numerical designation of I is assigned for this ear as well. Applying these designations to Table VII at 38 C.F.R. § 4.85, the assigned percentage is 0 percent. Considering the above referenced, the examiner confirmed the prior diagnosis of high frequency sensorineural hearing loss in the left ear only. The opinion noted that the Veteran described a functional impact as difficulty hearing and understanding conversational speech. In June 2016, a primary care outpatient note indicated that a physical examination of the bilateral ears revealed normal tympanic membranes. A hearing aid was provided for hearing loss in the left ear only. In a November 2016 substantive appeal, the Veteran reported worsening hearing. Due to the current severity of his symptoms, he reports an inability to hear "but for" use of the hearing aid provided by a VA medical clinic. The Veteran further asserts ongoing problems with understanding in conversations, especially in social settings. In August 2018, an audiological evaluation was conducted. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 15 25 20 LEFT 5 10 15 75 70 A subsequent evaluation was conducted in July 2019. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 15 20 10 LEFT 10 5 10 70 70 A threshold shift of 5 Hz was observed between 1000-3000 Hz in the left ear compared to audiological testing conducted in August 2018. It is unclear whether Maryland CNT testing was conducted during either evaluation, and as such, these evaluations cannot be properly applied to 38 C.F.R. § 4.85 for rating purposes. Thereafter, in February 2020, the Veteran testified at a Board hearing. Therein, he endorsed ongoing difficulty hearing in conversations and trouble discerning voices. His hearing impairment impaired his ability to work due to struggles with communication and understand speech in the presence of background noise, to include in meetings. The Veteran endorsed problems with sound and pitch, particularly while attending church services. Feeling withdrawn and anti-social was reported. An additional impact to his daily living included difficulty communicating by phone or hearing the television. Considering the above, the Veteran's claim was again remanded pursuant to a March 2020 Board decision. A new VA opinion was deemed necessary to evaluate lay assertions regarding symptom worsening. In September 2020, the Veteran reported that the left ear hearing aid was in ill repair, specifically problems with amplification was reported. Trouble shooting failed to resolve the issue and professional servicing was recommended. An audiology note; dated the same month, acknowledged that the left ear hearing aid was repaired, and the Veteran reported good sound quality after testing. On the authorized audiological evaluation in October 2020 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 15 25 20 LEFT 10 15 15 75 70 Pure tone threshold averages were 18 dB for the right ear and 44 dB for the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 98 percent in the left ear. By comparison, a threshold shift of 5 Hz was observed between 1000-3000 Hz in the left ear compared to audiological testing conducted in July 2019. Applying the above audiometric data to Table VI at 38 C.F.R. § 4.85, the left ear is again assigned a numerical designation of I for the left ear. A designation of I is again assigned for the right ear as service connection is still not in effect for hearing loss of this ear. Applying these designations to Table VII at 38 C.F.R. § 4.85, a noncompensable, or 0 percent rating, is again warranted. During the clinical interview, the Veteran described current symptoms as difficulty communicating at work, particularly in noisy environments, and in the presence of localizing sounds. The Veteran described a functional impairment as difficulty communicating in group settings and during meetings. Due to an inability to filter out speech in the presence of background noise, he often requested one-on-one conversations in a separate space in order to improve understanding. On review of the record, the Board finds that a compensable evaluation is not warranted for any time during the appeal period. At no time during the appeal period has the Veteran met the criteria for a compensable evaluation of 10 percent for hearing loss of the right ear under 38 C.F. R. § 4.85. Likewise, the Veteran's lay assertions fail to demonstrate that his functional impairment is of such severity as to warrant a higher rating. The Board recognizes the Veteran's competence to report on observable symptoms, including his difficulty hearing conversations particularly in the presence of background noise. It also acknowledges the specific contentions noted in the Veteran's March 2016 notice of disagreement, to include assertions that his hearing loss warranted a higher evaluation of 20 percent disabling. However, the Veteran is not competent to consider complex medical questions to include an assessment of the nature and severity of the symptoms for purposes of establishing an increased rating claim or render a complex medical opinion or diagnosis in the absence of proof of relevant training and expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377. In this case, the evidence fails to show a change in symptom severity sufficient to warrant a higher evaluation. While the Board is sympathetic to the Veteran's complaints of worsening symptoms, the evidence does not support his contentions. Under the rating criteria, a non-compensable evaluation contemplates some degree of impaired hearing, to include difficulty communicating. As there is no evidence of more significant functional loss, the Board finds that a compensable rating is not warranted at this time. The Board notes that this finding does not signify the absence of a disability associated with the Veteran's hearing loss. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable the benefit of the doubt are not applicable. The claim of entitlement to a compensable evaluation for left ear hearing loss must be denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Whitaker, 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.