Citation Nr: 21071923 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-14 820 DATE: December 1, 2021 ORDER Service connection for right ear hearing loss is denied. An initial compensable rating for left ear hearing loss is denied. FINDINGS OF FACT 1. The Veteran does not have a right ear hearing loss disability for VA purposes. 2. The Veteran's left ear hearing impairment is no worse than Level I based on puretone threshold average and speech discrimination. 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. §§ 3.303, 3.307, 3.309. 3.385. 2. The criteria for an initial compensable rating for left ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from July 2002 to July 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal of a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran requested a videoconference hearing on his Form 9. The Veteran was scheduled for a videoconference hearing on August 3, 2021, but failed to appear. The Veteran has not requested that the August 2021 Board hearing be rescheduled. As such, the Veteran's hearing request is deemed to have been withdrawn and there is no bar to proceeding with the appeal. The Board notes that the Veteran sent a letter in September 2021 notifying him that his former representative, John Dorrity, had retired, and advised him that he could choose a new representative. The letter indicated that if the Veteran did not reply within 30 days, the Board would assume that he wished to represent himself and would resume review of the appeal. To date, no response has been received. As such, adjudication of the instant appeal may proceed. Service Connection Right Ear Hearing Loss To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or an injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability also may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disability or if it is aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for impaired hearing shall only be established when hearing status as determined by audiometric testing meets specified puretone and speech recognition criteria. Audiometric testing measures puretone threshold hearing levels (in decibels) over a range of frequencies (in hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a Veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the laws 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 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. In Hensley, the Court explained that the threshold for normal hearing is from zero to 20 decibels and that higher threshold levels indicate some degree of hearing loss. See 5 Vet. App. at 157. Here, the Veteran's service treatment records (STRs), to include audiometric test results from his February 2002 enlistment examination and subsequent test results in July 2002 and February 2004, reveal normal hearing in the right ear. In a July 2008 treatment note, the Veteran denied having any hearing loss. In December 2016, the Veteran was afforded a VA audiological examination. At that time, the Veteran was not shown to have a hearing loss disability for VA purposes. The examination report reflects the following puretone thresholds: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 10 20 His speech discrimination scores using the Maryland CNC word list was 100 percent in the right ear. As such, the Veteran was not shown to have any right ear hearing loss for VA purposes. A September 2017 treatment note documented the Veteran's reports of minimal difficulty with his ability to hear. In June 2019 and June 2020 nursing admission notes, the Veteran was noted as reporting that his ability to hear was adequate and that he had no difficulty in normal conversation, social interactions, or watching television. Additionally, it was noted that the Veteran did not wear a hearing aid and that his speech was clear. The Board initially notes that laypeople are competent to report observable symptoms. However, the Veteran is not competent to diagnose a right ear hearing loss disability for VA purposes, as that requires medical testing and expertise that is outside the realm of the common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide a current diagnosis of a right ear hearing loss disability for VA purposes in this case. As such, based on the foregoing, there is no evidence that the Veteran has a right ear hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. Therefore, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for right ear hearing loss is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Left Ear Hearing Loss The Veteran asserts that the symptoms of his left ear hearing loss disability are worse than those contemplated by his currently assigned noncompensable (zero percent) rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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 pure tone 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. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test and the average hearing threshold, as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000 and 4000 hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000 and 4000 hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VI Numeric designation of hearing impairment based on puretone threshold average and speech discrimination. % of discrim- ination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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. Each ear will be evaluated separately. Table VIA Numeric designation of hearing impairment based only on pure tone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VII Percentage evaluation for hearing impairment (diagnostic code 6100) Poorer Ear XI 100* X 90 80 IX 80 70 60 VIII 70 60 50 50 VII 60 60 50 40 40 VI 50 50 40 40 30 30 V 40 40 40 30 30 20 20 IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0 II 10 10 10 10 10 10 10 0 0 0 I 10 10 0 0 0 0 0 0 0 0 0 XI X IX VIII VII VI V IV III II I At the outset, the Board notes that the Veteran is not service connected for a right ear hearing loss disability. As such, for purposes of mechanical application of the Veteran's level of hearing impairment to the rating criteria, the right ear will be assigned a Level I. 38 C.F.R. § 4.85(f). In December 2016, the Veteran was afforded a VA audiological examination. At that time, the VA examiner measured the Veteran's left-ear-hearing as 5, 5, 5, and 15 decibels at 1000, 2000, 3000, and 4000 Hertz, respectively. Additionally, the VA examiner reported that the Veteran's left ear speech recognition score was 92 percent. Application of those levels of hearing impairment to Table VII produces a noncompensable (zero percent) rating. See 38 C.F.R. § 4.85. As indicated in the service connection section above, there is no further evidence of record that the Veteran's hearing had worsened since his December 2016 VA examination. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable rating for his left ear hearing loss disability. In this regard, the Veteran's hearing impairment is no worse than Level I in the left ear. Therefore, a higher rating is not warranted. 38 C.F.R. § 4.85, Diagnostic Code 6100. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a compensable rating for a left ear hearing loss disability is not warranted. 38 U.S.C. § 5017(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.