Citation Nr: 21014438 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-06 279A DATE: March 12, 2021 ORDER Service connection for right ear hearing loss, effective September 24, 2019, is granted. An initial compensable rating for left ear hearing loss prior to September 24, 2019, is denied. A compensable rating for bilateral hearing loss from September 24, 2019, is denied. FINDINGS OF FACT 1. There is clear and unmistakable evidence that the Veteran had right ear hearing loss prior to service, but the evidence of record fails to clearly and unmistakably demonstrate that right ear hearing loss was not aggravated during service. 2. The Veteran first demonstrated hearing loss for VA purposes in her right ear at a September 24, 2019, VA examination. 3. Prior to September 24, 2019, the Veteran’s left ear hearing loss has been manifested, at its worst, by Level I hearing loss. 4. From September 24, 2019, the Veteran’s left ear hearing loss has been manifested, at its worst, by Level V hearing loss, and the Veteran’s right ear hearing loss has been manifested, at its worst, by Level I hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss, effective September 24, 2019, have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.385. 2. The criteria for an initial compensable rating for left ear hearing loss prior to September 24, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100. 3. The criteria for a compensable rating for bilateral hearing loss from September 24, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1982 to August 1986. The issues on appeal were previously before the Board in December 2018 at which time they were remanded for further evidentiary development. Substantial compliance with the remand requests having been achieved, the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical 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 present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. 38 C.F.R. § 3.303. For purposes of establishing service connection, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b). According to 38 C.F.R. § 3.304(b), the term “noted” denotes only such conditions that are recorded in examination reports. A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). The provisions of 38 U.S.C. § 1153, and its implementing VA regulation, 38 C.F.R. § 3.306, provide criteria for determining when a pre-existing disability has been aggravated. According to this statute and regulation, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Concerning this, mere temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). Regarding service connection claims for hearing loss, the Board notes that this particular disability is defined by regulation. Specifically, under 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; when the auditory thresholds for at least three of the above frequencies 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. Additionally, the Board observes that precedential case law provides that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. at 159. Moreover, to establish service connection for sensorineural hearing loss, a veteran is not obligated to show that his hearing loss was present during active service. However, if there is insufficient evidence to establish that a claimed chronic disability was present during service or during the one-year presumptive period thereafter, the evidence must establish a nexus between his current disability and his in-service exposure to loud noise. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA 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. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Turning to the evidence of record, two audiograms were taken at service entrance in November 1981 which revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 25 10 5 5 10 Although not used to measure hearing loss for VA purposes, at the 6000 Hz level, the threshold was 35. The Veteran reported hearing loss at entrance, noting that she had previously perforated her left ear drum. No notations were made regarding the right ear. Additional audiograms were taken in July 1982 revealing the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 5 15 HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 10 10 15 HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 5 5 15 In August 1982, the Veteran sought medical treatment for wax in her right ear. She also was diagnosed with otitis externa, which resolved. In February 1983, it was noted that her ear canals were clear and her right tympanic membrane was retracted. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 15 30 Another audiogram was conducted in June 1983 with the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 5 25 An audiogram from November 1983 demonstrated the following: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 0 5 20 The Veteran reported a bilateral earache for a week in December 1983. The right ear had an irritated area but there was no infection. In June 1984, it was noted that the right ear had a clear tympanic membrane. An audiogram that appears to be dated October 1985 revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 5 X 20 A January 1986 audiogram demonstrated the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 X 15 At service separation, the Veteran endorsed hearing loss. An audiogram revealed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 10 10 The threshold at the 6000 Hz level was 35. The Veteran’s military personnel records reflected that her military occupational specialty (MOS) was cartographer. She submitted a statement in December 2011 noting that she served in three different MOS positions during her active service including 62J (construction equipment operation), 67N (helicopter repair), and 81C (cartography). While performing such duties, she reported exposure to acoustic noise trauma. The Veteran underwent a VA examination in March 2012. She reported that she experienced noise exposure in service and that she wore earplugs and headphones. Post-service, she was employed as a drafter in an office environment and had no recreational noise exposure history. She stated that she currently had to stop and look at people when they talked in order to understand them. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 15 20 35 The puretone threshold average was 22 in the right ear. Speech recognition testing using the Maryland CNC Word List demonstrated speech recognition ability of 98 percent in the right ear. The examiner determined that it was at least as likely as not that bilateral hearing loss was the result of military noise exposure. In support, she stated that the opinion was based on the fact that threshold shifts in the high frequency region were documented in military audiograms. That type of shift is found in association with acoustic trauma and the Veteran would have been exposed to noise levels adequate enough to cause changes to her auditory system while in the service. The examiner also indicated that hearing loss preexisted service and was aggravated beyond normal progression in the right ear. The examiner also noted that the right ear remained stable during service. The Veteran submitted a lay statement in January 2013 describing her MOS duties and experience and noting bilateral hearing loss since active service. She stated that she had difficulty hearing conversation, others thought she was ignoring them, and she had to repeat herself frequently due to her bilateral hearing loss. The Veteran received hearing aids from VA providers. In April 2019, she reported that her hearing loss in both ears had recently worsened. Another VA examination was conducted in September 2019. The Veteran stated that she was exposed to construction noise and helicopters during service and did not have significant noise exposure post-service. She stated that people thought she was ignoring them due to her hearing loss and that she missed a lot of what her children said to her. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 25 25 45 The puretone threshold average was 29 in the right ear. Speech recognition testing using the Maryland CNC Word List demonstrated speech recognition ability of 96 percent in the right ear. The examiner determined that it was less likely than not that the Veteran’s right ear hearing loss was the result of military noise exposure. In support, she stated that hearing loss existed prior to service and it was not aggravated beyond normal progression because the separation audiogram did not have worsened thresholds from the enlistment audiogram. 1. Service connection for right ear hearing loss, effective September 24, 2019, is granted. At the outset, the Board notes that it has been conceded that the Veteran was exposed to military noise. Further, hearing loss for VA purposes was first demonstrated at the September 2019 VA examination. As such, the determinative issue is whether such hearing loss is related to the in-service noise exposure. Based on the foregoing, the Board finds that service connection for right ear hearing loss is warranted. Pre-existing hearing loss was demonstrated at the lowest and highest Hertz levels (500 and 6000) in the right ear at service entrance. As such, hearing loss has been found to clearly and unmistakably preexist service. However, the Board is unable to conclude that the Veteran’s right ear hearing loss was not aggravated by service. Hearing loss at the 4000 Hz level was shown on several occasions during service (25 and 30 decibels). The March 2012 examiner stated that such threshold shifts in the high frequency region were found in association with acoustic trauma, such as the noise levels experienced in service. Further, the examiner indicated that the Veteran’s right ear hearing loss was aggravated beyond normal progression in service. Although the examiner also noted that the right ear remained stable during service, the threshold shifts demonstrated in the higher Hz levels support her rationale. Because such shifts were found to demonstrate acoustic trauma, they do not represent temporary or intermittent flare-ups. The Board attaches significant probative value to the VA opinion as it is well-reasoned, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history. The Board also affords probative weight to the Veteran’s own descriptions of her experiences regarding her noise exposure and hearing loss since service. The Board recognizes the September 2019 examiner’s determination that right ear hearing loss had not been aggravated during service on the basis of the separation audiogram results alone. However, the examiner did not discuss the threshold shifts, including evidence of hearing loss at the 4000 Hz level, during service or the prior examiner’s finding that this was significant for evidence of acoustic trauma. As such, the Board does not afford the opinion significant probative weight. Absent clear and unmistakable evidence that the Veteran’s right ear hearing loss was not aggravated beyond natural progression by service, the presumption of soundness is not rebutted. Therefore, service connection is warranted. The Board notes that the first evidence of hearing loss meeting VA regulatory requirements was demonstrated at the September 24, 2019, VA examination. As such, service connection is warranted as of that date, but no earlier. Increased Ratings Service connection for the Veteran’s left ear hearing loss was granted at a noncompensable rate, effective September 25, 2011. The Veteran timely appealed. As determined above, service connection for right ear hearing loss is granted, effective September 24, 2019. As such, the Board will consider whether a compensable rating is warranted for left ear hearing loss from September 25, 2011, to September 24, 2019, and whether a compensable rating is warranted for bilateral hearing loss from September 24, 2019. Disability evaluations are determined by the application of the facts presented to VA’s Rating Schedule at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Ratings of 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 hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating 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. In order 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 pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of puretone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. 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 more at 2000 Hertz. 38 C.F.R. § 4.86. Specifically, when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment is determined from either Table VI or Table VIA, whichever results in the higher numerical. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral, and then each ear will be evaluated separately. Id. If impaired hearing is service-connected in only one ear, as during a period in the instant case, in order to determine the percentage evaluation from Table VII, the nonservice-connected ear will be assigned a Roman Numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). Pursuant to 38 C.F.R. § 3.383, when hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of 38 C.F.R. § 3.385 in the other ear is shown to be present, compensation is payable for the combination of the service-connected hearing loss and nonservice-connected hearing loss as if both disabilities are service connected, provided the nonservice-connected disability is not the result of the Veteran’s own willful misconduct. Under 38 C.F.R. § 3.385, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, and 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. In Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the United States Court of Appeals for Veterans Claims (Court) held that relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Id. Turning to the evidence of record, the Veteran underwent a VA examination in March 2012. She reported that she currently had to stop and look at people when they talked in order to understand them. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 35 20 15 20 35 LEFT 70 40 30 40 55 The puretone threshold average was 22 in the right ear and 41 in the left ear. Speech recognition testing using the Maryland CNC Word List demonstrated speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. In a January 2013 statement, the Veteran reported difficulty understanding conversation, people thinking she was ignoring them, and needing to frequently repeat herself due to her hearing loss. She stated that her hearing loss interfered with her quality of life. Prescribed hearing aids did allow her to hear noises and conversation she had previously missed. Another VA examination was conducted in September 2019. The Veteran reported that she was frustrated that people thought she was ignoring them and that she missed a lot of what her children said due to her bilateral hearing loss. An audiogram revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 30 20 25 25 45 LEFT 60 50 50 70 95 The puretone threshold average was 29 in the right ear and 66 in the left ear. Speech recognition testing using the Maryland CNC Word List demonstrated speech recognition ability of 96 percent in the right ear and 96 percent in the left ear. 2. An initial compensable rating for left ear hearing loss prior to September 24, 2019, is denied. The March 2012 examination reflected that the puretone threshold at 4000 Hz was 55, or an exceptional pattern of hearing under 38 C.F.R. § 4.86. However, the audiometry test results equate to Level I in the left ear under both Table VI and Table VIA. Applying Level I in the left ear and Level I in the nonservice-connected right ear to Table VII, the Veteran’s left ear hearing acuity equates to a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. As hearing impairment meeting the requirements of 38 C.F.R. § 3.385 is not demonstrated in the nonservice-connected right ear, compensation is not payable for hearing loss in both ears. 38 C.F.R. § 3.383. As such, a compensable rating is not warranted for left ear hearing loss prior to September 24, 2019. 3. A compensable rating for bilateral hearing loss from September 24, 2019, is denied. The September 2019 examination again demonstrated an exceptional pattern of hearing under 38 C.F.R § 4.86 in the left ear. Under Table VI, the left ear audiometry test results equate to Level II. Under Table VIA, the left ear audiometry test results equate to Level V. As such, it is more advantageous to the Veteran to use Table VIA. The right ear audiometry test results equate to Level I under Table VI. Applying these levels to Table VII, the Veteran’s bilateral hearing acuity equates to a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. The Board finds that the Veteran’s bilateral hearing loss warrants a noncompensable rate from September 24, 2019. At worst, her hearing acuity in the left ear has equated to Level V hearing loss and hearing acuity in the right ear has equated to Level I hearing loss, resulting in a noncompensable rating. To the extent that the Veteran may believe that her hearing loss is more severe than currently evaluated, the Board observes that, although she is competent to report symptoms such as difficulty understanding speech or hearing clearly with background noise, she is not competent to report that her hearing acuity is of sufficient severity to warrant a particular evaluation under VA’s tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which she has not been shown to have. Further, disability ratings for hearing loss are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. at 349. Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiological examinations of record. Here, mechanical application of the rating schedule to the audiometric findings establishes entitlement to a noncompensable rating for bilateral hearing loss. As such, a compensable rating is not warranted for bilateral hearing loss from September 24, 2019. The Board finds that the veteran’s disability is fully capable of evaluation under the rating schedule. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.