Citation Nr: A21019100 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 211026-193836 DATE: December 1, 2021 ORDER Entitlement to service connection for right ear hearing loss is granted. Entitlement to a compensable disability rating for service-connected left ear hearing loss is denied. FINDINGS OF FACT 1. The most probative evidence indicates that the Veteran's current right ear hearing loss had its origins during active duty service and has continued to the present. 2. The most probative evidence establishes that the Veteran has experienced no worse than Level IV hearing acuity in the left ear during the appellate period. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. §§ 1110, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to a compensable disability rating for service-connected left ear hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1968. 1. Entitlement to service connection for right ear hearing loss is granted. In March 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 2020 rating decision. In May 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 2020 decision. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Board of Veterans' Appeal's (Board) Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2020 rating decision. 38 C.F.R. § 20.301. This matter originates from the filing of an August 2020 Supplemental Claim, VA Form 20-0995. The Veteran was previously denied entitlement to service connection for right ear hearing loss in a final June 2012 rating decision. In the May 2021 HLR decision, the AOJ determined that new and relevant evidence has been received, and the claim is subject to readjudication. 38 C.F.R. § 3.2501. The Board is bound by this favorable finding. 38 C.F.R. § 3.104(c). Generally, to establish service connection, a veteran must show: (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred during service, the so-called "nexus" requirement. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All elements must be satisfied before service connection may be achieved. Additionally, service connection may be achieved if any applicable presumptive service connection regulations apply to the Veteran's circumstances. In the May 2021 HLR rating decision, the RO determined that a November 2020 VA examination showed that the Veteran experienced a right ear hearing loss for VA compensation purposes. Additionally, the RO determined that the evidence showed a qualifying in-service event. The Veteran's DD Form 214 showed a military occupational specialty of cook, and based on this, the RO conceded exposure to hazardous military noise. Further supporting this conclusion is the Veteran's April 2011 lay statement, where he credibly and competently reported constant noise from operating generators and explosions from incoming and outgoing artillery rounds during his service in the Republic of Vietnam. The HLR evaluator determined that the current disability and in-service incurrence elements of a service connection claim were satisfied, and the Board is bound by these favorable findings. 38 C.F.R. § 3.104(c). Thus, the Board turns to the dispositive issue of medical nexus. At a May 2012 VA examination, a VA examiner clinically diagnosed the Veteran with bilateral sensorineural hearing loss in the frequency range of 500 to 4000 Hertz and issued a favorable medical nexus opinion, linking such hearing loss to the Veteran's active duty service. The VA examiner reviewed the relevant evidence and stated that since the Veteran "was attached to an artillery unit in Vietnam where hearing protection was unavailable, and given the lack of complete high-frequency hearing assessment upon entrance to or discharge from the military, it is...at least as likely as not that the Veteran's hearing loss was caused by or is a result of an event in military service and may have worsened as a civilian." While the Veteran experienced a clinical sensorineural hearing loss in the right ear at this May 2021 VA examination, he did not have right ear hearing loss for VA compensation purposes under 38 C.F.R. § 3.385. Thus, in the June 2012 rating decision, the Veteran was denied entitlement to service connection for right ear hearing loss due to the lack of a current disability for VA compensation purposes. The AOJ determined that the May 2012 VA medical nexus opinion was sufficient to service connect left ear hearing loss, considering the May 2012 VA examination showed left ear hearing loss for VA compensation purposes. The Veteran was afforded an additional VA examination in November 2020 to assess the nature and severity of his right ear hearing loss. At this VA examination, the criteria from 38 C.F.R. § 3.385 were met, and the Veteran experienced a current disability of right ear hearing loss for VA compensation purposes. At the VA examination, the Veteran reported military noise exposure as a cook serving in Vietnam, where he was exposed to loud weapons fire, mortar explosions, and aircraft/flight line operations, without hearing protection. The Veteran was also forthright in reporting minimal post service occupational and recreational noise exposure. He stated that he worked for 5 years at an auto parts factory where he utilized hearing protection, and he engaged in occasional post-service hunting (right-handed shooter) with disparate use of hearing protection. In December 2020, a VA examiner issued a negative medical nexus opinion declining to link the Veteran's confirmed right ear hearing loss to his active duty service and conceded military noise exposure. The VA examiner found no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, except at 500 to 1000 Hertz, once ASA-ANSI correction factors were applied. She stated this is objective evidence that the Veteran did not experience permanent auditory damage during his active duty service. She stated that the shift at 500 to 1000 Hertz was more likely associated with transient middle ear issues given that the testing was conducted in the late fall when middle ear issues are more common, and the Veteran had a history of middle ear infections. She further noted that improvement was seen at these frequencies at the May 2012 VA examination and hearing loss in low frequencies is not consistent with noise exposure. She stated that the there was no report or complaint/treatment for decreased hearing in the service treatment records or at service separation. The Board declines to afford the December 2020 VA medical nexus opinion any probative value in this appeal, as it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). The December 2020 VA examiner's statement that the auditory shift at 500 to 1000 Hertz between service entrance and separation was likely due to transient middle ear issues because the test was conducted in the fall when such issues are common, and the Veteran has a history of middle ear infections is entirely speculative and conjectural. There is no evidence to suggest that the Veteran was experiencing any middle ear issues at the time of the November 1968 exit examination, and physical examination of the internal and external ear canals were clinically normal at service discharge. Additionally, while the Veteran's service treatment records document a few episodes of upper respiratory infections, the records do not show any treatment or a history of ear infections during the Veteran's active duty service. Lastly, the December 2020 VA examiner stated there were no reports of decreased hearing in the service treatment records or at service separation, despite the November 1968 exit examination listing "partial deafness" under the section titled "summary of defects and diagnoses." The Board affords no weight to the December 2020 VA medical opinion as it was not informed by an accurate assessment of the Veteran's in-service medical records. In support of his claim, the Veteran has submitted scientific articles suggesting age-related hearing loss may be accelerated by early noise exposure during youth and temporary noise-induced hearing loss may result in cochlear nerve degeneration. See August 2020 evidence submission. Sensorineural hearing loss is considered a "chronic disease" under 38 C.F.R. § 3.309(a) (as organic disease of the nervous system); therefore, the presumptive service connection provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms apply, as well as the presumptive service connection provisions for disabilities manifesting to a compensable degree within one year of service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a); see Fountain v. McDonald, 27 Vet. App. 258 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the April 2011 formal claims application, the Veteran reported that he began having difficulty understanding normal conversations while in the Army and this issue has persisted to the present. In a July 2011 statement, the Veteran surmised that his hearing issues began during basic training when he was exposed to the loud firing of M14 rifles. At the November 2020 VA examination, the Veteran recalled that his hearing loss began with gradual onset during military service. The Veteran's credible and competent lay reports of experiencing a gradual onset of hearing loss in service, the notation of partial deafness at the November 1968 exit examination, the Veteran's credible and competent reports of continuous decreased hearing acuity since service, and the favorable May 2012 VA nexus opinion (which was used to grant service connection for left ear hearing loss, and its rationale applies equally to the right ear) all weigh in favor of granting entitlement to service connection for right ear hearing loss. As the most probative evidence, including the May 2012 VA medical opinion, and the Veteran's credible and competent reports of hearing loss initiated during service and continuing to the present, preponderates in favor of the claim, the Veteran's appeal seeking entitlement to service connection for right ear hearing loss is granted. 2. Entitlement to a compensable disability rating for service-connected left ear hearing loss is denied. In March 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a November 2020 decision. In May 2021, the agency of original jurisdiction (AOJ) issued a HLR rating decision, which considered the evidence of record at the time of the prior November 2020 rating decision, but found a predecisional duty to assist error. The claim was returned to the AOJ for corrective action. See 38 C.F.R. §§ 3.2601(g); 3.2502. Following correction of the duty to assist error, the claim was again denied in a July 2021 AOJ rating decision. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Board's Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the July 2021 AOJ rating decision on appeal. 38 C.F.R. § 20.301. On appeal, the Veteran seeks a compensable rating for his service-connected left ear hearing loss disability. The Veteran's left ear hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code 6100. This diagnostic code sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of the tables found in 38 C.F.R. § 4.85, and there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist, must include a controlled speech discrimination test, and must include a pure tone audiometry test without the use of hearing aids. 38 C.F.R. § 4.85(a). Speech recognition ability must be measured using the Maryland CNC word list. Id. Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, and as measured by pure tone audiometric testing in the frequencies at 1000, 2000, 3000, and 4000 Hertz. The rating criteria for hearing loss establish eleven auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. The rows in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test averages. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the row appropriate for the percentage of discrimination and the column appropriate to the average pure tone decibel loss. The percentage disability evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the row appropriate for the numeric designation for the ear having the better hearing acuity and the column appropriate to the numeric designation level for the ear having the poorer hearing acuity. During the period on appeal, an exceptional pattern of hearing impairment has not been demonstrated. Thus, 38 C.F.R. § 4.86 is not for application. When a veteran is service connected for hearing loss in only one ear, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear is assigned a Roman numeral I, subject to the provisions of 38 C.F.R. § 3.83. See 38 C.F.R. § 4.85(f). In considering this evaluation, the Board notes that it is limiting this decision to the analysis of hearing loss in the left ear only for the period on appeal. The Board is aware that it's grant of service connection for right ear hearing loss, above, has resulted in the Veteran now being service-connected for bilateral hearing loss, but because there is no technical pre-decisional duty to assist error in this matter, the Board lacks legal justification to remand this appeal under the modernized appeal system for the AOJ to initially rate the Veteran's right ear hearing loss, to be combined with the left ear hearing loss, and rated bilaterally. The Board cannot assign a rating for right ear hearing loss in the first instance, and makes no inference regarding a rating to be assigned for bilateral hearing loss for any overlapping period of time where service connection of right ear hearing loss is in effect, as granted above. If the Veteran is unsatisfied with the rating assigned for bilateral hearing loss by the AOJ upon implementation of the grant of benefits awarded above, he is welcome to appeal that rating. The AOJ obtained the audiogram and speech discrimination scores from the Veteran's August 2020 VA audiology visit for treatment purposes. The evidence shows that the August 2020 audiologist used CIDW-22 testing for speech discrimination instead of the Maryland CNC test, and as such, the August 2020 audiology results are not adequate for VA rating purposes. The Veteran was afforded a November 2020 VA audiological examination that showed pure tone thresholds of 40, 55, 65, and 65 decibels in the left ear at the test frequencies 1000, 2000, 3000, and 4000 Hertz, respectively, with an average pure tone threshold of 56 decibels. The Maryland CNC speech recognition score was 80 percent. The VA examiner indicated that audiometry and speech discrimination results were valid and appropriate for rating purposes. Using Table VI, the Veteran's left ear hearing loss warrants the assignment of a Roman numeral IV. Assigning a Roman Numeral I for the right ear as directed in 38 C.F.R. § 4.85(f), this results in a zero percent, or noncompensable, disability evaluation under Table VII. See 38 C.F.R. § 4.85. The Board has considered the Veteran's brief statements that his left ear hearing loss disability warrants a higher rating. He is competent to report difficulty hearing; however, he is not competent to report that his hearing acuity is of sufficient severity to warrant increased compensation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In determining the actual degree of his hearing disability, an objective examination that specifically measures relevant criteria of decibel loss at specific ranges and loss of speech recognition ability is more probative of the degree of the hearing loss impairment than general assertions of difficulty hearing. The description of his hearing loss must be considered in conjunction with the clinical evidence of record as well as the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination based on the results of the probative audiology studies of record. As described above, the most probative evidence of record demonstrates that the Veteran has experienced no worse than Level IV hearing acuity in the left ear during the period on appeal, which directly correlates to a noncompensable rating using the tables provided in 38 C.F.R. § 4.85. As the audiological evidence of record has not demonstrated compensable left ear hearing loss under the criteria set forth in 38 C.F.R. § 4.85 within the appellate period, the Veteran's appeal seeking a compensable rating for his service-connected left ear hearing loss is denied. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.