Citation Nr: 21015015 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 11-27 621 DATE: March 16, 2021 ORDER Entitlement to a compensable rating for right ear hearing loss is denied. REMANDED Entitlement to a rating in excess of 20 percent for residuals of shell fragment wounds to the right arm and shoulder is remanded. FINDING OF FACT The Veteran’s right ear hearing loss has been manifested by no more than Level II hearing impairment. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for right ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to September 1970. He received the National Defense Service Medal; Vietnam Service Medal with one star; Vietnam Campaign Medal with device; RVN Cross of Gallantry with palm and frame; Combat Action Ribbon; and, Purple Heart Medal. Increased Rating for Right Ear Hearing Loss Disability ratings for service-connected hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations rendered from audiometric evaluations. 38 C.F.R. § 4.85; Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing loss are based on the organic impairment of hearing acuity as measured by controlled speech discrimination tests, in conjunction with the average hearing threshold as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. 38 C.F.R. § 4.85. Evaluations range from noncompensable to 100 percent. The Rating Schedule establishes 11 auditory acuity Levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. The horizontal rows in Table VI (found in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column corresponding to the pure tone decibel loss. The percentage evaluation is found in Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity with the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). If impaired hearing is service-connected for only one ear, the nonservice-connected ear is to be assigned a Roman numeral designation of I for purposes of utilizing Table VII. 38 C.F.R. § 4.85(f). The Veteran underwent a VA examination in November 2008. See November 2008 VA Examination, pp. 1-2. Pure tone thresholds for the right ear were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 15 45 65 The pure tone threshold average was 34 in the right ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 100 in the right ear. Under Table VI of 38 C.F.R. § 4.85, the scores for the right ear correlate to Roman numeral I. As noted above, a Roman numeral I is designated for the nonservice-connected left ear. See 38 C.F.R. § 4.85(f). A noncompensable rating is warranted under Diagnostic Code (DC) 6100 when these auditory acuity levels are entered into Table VII of 38 C.F.R. § 4.85. A VA audiological examination in January 2011, see January 2011 VA Examinationpp. 1-2, reveals pure tone thresholds for the right ear as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 20 45 65 The pure tone threshold average was 38 in the right ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 100 in the right ear. Under Table VI, the scores for the right ear correlate to Roman numeral I and a Roman numeral I is designated for the nonservice-connected left ear. A noncompensable rating is warranted under when these auditory acuity levels are entered into Table VII. In January 2018, the Veteran underwent another VA examination. See January 2018 VA Examination, pp. 3. Pure tone thresholds for the right ear were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 25 55 60 The pure tone threshold average was 41 in the right ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 96 in the right ear. Under Table VI, the scores for the right ear correlate to Roman numeral I and a Roman numeral I is designated for the nonservice-connected left ear. A noncompensable rating is warranted under when these auditory acuity levels are entered into Table VII. Most recently, the Veteran underwent a VA examination in August 2020. See August 2020 VA Examination, P. 3. pure tone thresholds for the right ear were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 50 60 65 The pure tone threshold average was 51 in the right ear. Using the Maryland CNC speech recognition test, speech audiometry results revealed a speech recognition ability score of 84 in the right ear. Under Table VI, the scores for the right ear correlate to Roman numeral II and a Roman numeral I is designated for the nonservice-connected left ear. A noncompensable rating is warranted under when these auditory acuity levels are entered into Table VII. In light of the foregoing, the preponderance of the evidence demonstrates that the Veteran’s right ear hearing loss has not met the criteria for a compensable rating under DC 6100 at any time during the period on appeal. Moreover, the Veteran has characterized the functional impact of his hearing loss as difficulty understanding conversational speech and the television. See August 2020 VA Examination, P. 6; January 2018 VA Examination, P. 5; January 2011 VA Examination, P. 4; September 2020 VA Treatment Records, P. 15. These functional impairments and related difficulties are factors contemplated by the regulations and schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017); Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Accordingly, an increased rating for right ear hearing loss is not warranted. REASONS FOR REMAND Increased Rating for Shell Fragment Wounds to the Right Arm and Shoulder The Veteran has undergone two operations on his right shoulder during the appeal period. See December 2008 Private Treatment Records, pp. 1-4. However, the evidence is unclear as to whether the Veteran’s operations are related to his service-connected condition and whether any convalescence was required. On remand, the Agency of Original Jurisdiction should obtain an opinion that addresses whether the Veteran’s December 2008 and December 2009 operations were related to his service-connected condition. The Veteran should also be provided with an opportunity to submit any outstanding relevant private treatment records, especially any such records that document required convalescence. The matter is REMANDED for the following action: 1. Provide the Veteran with the appropriate release forms to identify and obtain any outstanding private treatment records related to his December 2008 and December 2009 right shoulder operations. 2. After any outstanding private treatment records have been secured, obtain a VA opinion that addresses whether the Veteran’s December 2008 and December 2009 right shoulder operations were related to his service-connected condition. If deemed necessary by the examiner, schedule the Veteran for an examination. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. LLOYD CRAMP Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, 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.