Citation Nr: 21008351 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 19-05 799A DATE: February 16, 2021 ORDER Entitlement to an initial compensable rating for left ear hearing loss is denied. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDING OF FACT Throughout the rating period on appeal, the Veteran’s hearing loss has been manifested by no worse than Level IV hearing in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VIA, and VII. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marines from June 1957 to September 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in New York, New York. In September 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Addressing the relevant procedural history, this case was previously before the Board in April of 2020 at which time it was remanded for additional development, to specifically include affording the Veteran the opportunity to attend a new VA examination and obtain a VA opinion addressing medical articles the Veteran submitted in support of his service connection claim. The case has now been returned to the Board for adjudication. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c); 38 U.S.C. § 7107 (a)(2). Entitlement to an initial compensable rating for left ear hearing loss is denied. The Veteran contends that he is entitled to an increased rating for his left ear hearing loss. See September 2019 Board Hearing Transcript. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average puretone threshold levels as measured by puretone audiometry tests at the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. To establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average puretone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use the results of puretone audiometry tests together with the results of controlled speech discrimination tests, using the Maryland CNC test. Results of those tests are charted on Table VI and Table VII as set out in the Schedule. Table VIA, which allows for rating based only on puretone threshold averages, is used instead of Table VI when an examiner certifies that the use of speech discrimination testing is not appropriate or when there is an exceptional pattern of hearing impairment. 38 C.F.R. § 4.85 (c). An exceptional pattern of hearing loss occurs when the puretone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. § 4.86. After a thorough review of the evidence of record, the Board concludes that a compensable disability evaluation is not warranted for the Veteran’s service-connected left ear hearing loss. Turning to the evidence of record, the Veteran underwent a VA audiology examination in June of 2017. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 30 30 40 45 LEFT 10 25 65 70 75 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 36.25 decibels (rounded to 36 decibels) for the right ear and 58.75 decibels (rounded to 59 decibels) for the left ear. Speech recognition ability was listed as 100 percent in the right ear and 86 percent in the left ear using the Maryland CNC word lists. The examiner noted sensorineural hearing loss in both ears. Applying the above results from the June 2017 Compensation and Pension examination report to the Rating Schedule shows Level III hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. Because the right ear is not service-connected, it must be assigned a Level I hearing acuity using Table VI. 38 C.F.R. § 4.85 (f). Combining these levels according to Table VII results in a noncompensable (0 percent) rating. Significantly, applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a 0 percent evaluation for left ear hearing loss under Diagnostic Code 6100. Thus, this audiometry examination indicates that the Veteran’s current noncompensable rating is appropriate. The Veteran underwent an additional VA audiology examination in October of 2020. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 25 55 55 LEFT 15 25 55 70 75 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 40 decibels for the right ear and 56.25 decibels (rounded to 56 decibels) for the left ear. Speech recognition ability was listed as 94 percent in the right ear and 82 percent in the left ear using the Maryland CNC word lists. This examiner also noted sensorineural hearing loss in both ears. Applying the above results from the June 2017 Compensation and Pension examination report to the Rating Schedule shows Level IV hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VI, Diagnostic Code 6100. As stated above, because the right ear is not service-connected, it must be assigned a Level I hearing acuity using Table VI. 38 C.F.R. § 4.85 (f). Applying the above results from the October 2020 examination report to the Rating Schedule results in a noncompensable (0 percent) rating. See 38 C.F.R. § 4.85, Table VI, VII, Diagnostic Code 6100. Significantly, all of the valid and competent audiometry examinations of record during the period on appeal indicate that the Veteran’s current noncompensable rating is appropriate for his service-connected left ear hearing loss. Additionally, none of the results of the audiological testing reflect an exceptional pattern of hearing impairment for the Veteran’s left ear. See 38 C.F.R. § 4.86. In addition, while there is documentation in the record of ongoing treatment for hearing loss, none of the Veteran’s medical treatment records contain valid audiological measurements that could substantiate the Veteran’s assertions and justify a higher rating during this period. There is also no other evidence that would justify a higher rating. The Veteran is competent to attest to things he experiences through his senses, such as decreased hearing acuity. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, there is no evidence that the Veteran is competent to identify a specific level of hearing loss according to the appropriate diagnostic codes. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Hearing loss for VA purposes is measured by objective, not subjective, means. The rating criteria require both documentation of this objective measure of hearing loss and findings that it falls within a pre-established range to warrant a certain rating. Thus, the Veteran’s lay statements, while acknowledged, offer little probative value in regard to deciding this claim. Based on the foregoing discussion, the evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected left ear hearing loss varied to such an extent that a rating greater than the noncompensable rating currently assigned would be warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the applicable rating criteria, the Board must base its determination on the results of the pertinent and valid audiology studies. In other words, the Board is bound by law to apply VA’s rating schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In this case, as explained above, the numeric designations do not correlate to a compensable rating in excess of 0 percent for left ear hearing loss. As such, the preponderance of the evidence is against the Veteran’s claim and the doctrine of reasonable doubt is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for right ear hearing loss is remanded. While a contemporaneous examination is of record, this examination does not provide a sufficient basis upon which to decide the claim. Specifically, the Board instructed in its April 2020 Board remand that the VA examiner who authored an opinion on remand address medical articles the Veteran submitted in support of his service connection claim. Instead, the VA examiner who authored the October 2020 opinion stated that, “[t]he medical articles/and multiple audiograms submitted were reviewed and there was no significant threshold shift noted on any of the hearing tests from 1956 through 1984. There was no measurable right-sided auditory damage noted for this Veteran during his military service.” This does not sufficiently address the medical articles submitted by the Veteran. In addition, the examiner seems to be stating that in-service cochlear damage is required in order to justify a relation between his current hearing loss and active duty service. However, VA statutory regulations do not specifically require in-service cochlear damage in order to warrant service connection. In fact, service connection for a hearing loss disability may be awarded even if such disability did not manifest during service. See 38 C.F.R. § 3.303 (d); see also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Even without a documented in-service injury, evidence of a current hearing disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Given the foregoing, the Board cannot make a fully-informed decision on the matter until it is remanded in order to obtain a new VA opinion. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s right ear hearing loss. The clinician must be provided with and review the entire claims file, to include a copy of this remand and it should be confirmed that such records were available for review. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s right ear hearing loss had its onset during active duty or is causally or etiologically related to any in-service event, disease, or injury.  In so opining, the clinician is specifically asked to note that the absence of in-service evidence of a hearing loss disability is not always fatal to a service connection claim, and therefore, a lack of in-service notations related to hearing loss cannot be used as the sole that the Veteran’s current right ear hearing loss is not etiologically related to his active service. The clinician’s opinions should reflect consideration of whether, given the in-service noise exposure, the evidence establishes that the Veteran’s right ear hearing loss was incurred in active service or is otherwise etiologically related to his active service, such as being the delayed result of the in-service noise exposure. Further, the examiner is asked to consider and explicitly acknowledge the content of the medical articles submitted by the Veteran. 2. Thereafter, readjudicate the claim. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.