Citation Nr: 21023036 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-37 167 DATE: April 20, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. Throughout the period of the claim, the Veteran’s hearing loss manifested, at worst, as Level I hearing in his right ear and Level II hearing in his left ear. 2. The Veteran’s tinnitus had its onset within one year of separation and has manifested continuously since then. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1971 to September 1973. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified during a video hearing before the undersigned Veterans Law Judge; the transcript of the hearing has been included in the evidence of record. Entitlement to an initial compensable disability rating for bilateral hearing loss The Veteran seeks a higher rating for his service-connected bilateral hearing loss. For the following reasons, the Board finds that entitlement to a higher rating is not established. Hearing loss is evaluated under 38 C.F.R. § 4.85, DC 6100. In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See id. There are alternative criteria for certain exceptional patterns of hearing loss. Specifically, if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based either on Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Id. 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 will be chosen from either Table VI or Table VIa under 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Board notes that the audiometric examinations, as discussed below, do not indicate that the Veteran has an exceptional pattern of hearing loss that would warrant an evaluation based on Table VIa, and so the Board will evaluate the Veteran’s hearing using Table VI. See 38 C.F.R. § 4.86. The Veteran’s June 2017 audiological examination revealed the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 25 35 40 45 36.25 LEFT 30 35 60 80 51.25 Speech discrimination score using the Maryland CNC word list was 96 percent for the right ear, and 88 percent for the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under DC 6100. A December 2015 audiogram at a private hearing aid center revealed the following pure tone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 35 45 45 35 40 LEFT 35 35 55 65 47.5 The document of this audiogram gives no indication that a speech discrimination test was performed, let alone one which used the Maryland CNC word list. Thus, the December 2015 audiogram is not adequate for rating purposes. 38 C.F.R. § 4.85, DC 6100. Even if the Board relies upon the higher puretone threshold average for the right ear found in the December 2015 audiogram to evaluate the Veteran’s hearing loss, his hearing loss is not compensable. A puretone threshold average of 40 and speech discrimination score of 96 percent still yields a numeric designation of I for his right ear. The Board acknowledges the Veteran’s statements regarding the severity of his hearing loss, and the VA’s obligations of resolving reasonable doubt in favor of the Veteran. However, the Board notes that the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are made. There is no doubt as to the proper ratings to assign, and thus no doubt to resolve in favor of the claimant. Lendenmann v. Principi, 3 Vet. App. 345 (1992); 38 C.F.R. § 4.85, Tables VI, VIA, VII, Diagnostic Code 6100. The RO and the Board are bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Board finds no evidence of anything out of the ordinary with the June 2017 VA examination that would invalidate the examination results. The record contains no other objective evidence of the Veteran’s hearing acuity after his separation from service. When asked about his hearing loss during the February 2021 Board hearing, the Veteran stated that his hearing loss had not worsened since the June 2017 examination. Therefore, the Board finds that the June 2017 VA examination is highly probative in assessing the nature and severity of the Veteran’s hearing loss. The Veteran’s bilateral hearing loss has not met or more nearly approximated the criteria for a compensable rating at any time during the pendency of this claim. Accordingly, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Entitlement to service connection for tinnitus Direct service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection typically requires evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted on a presumptive basis for chronic diseases listed in § 3.309 under the following circumstances: (1) Where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Tinnitus, which is categorized as an organic disease of the nervous system, is one such chronic disease. Fountain v. McDonald, 27 Vet. App. 258 (2015). The Veteran reported in a July 2017 statement that “the ringing in my ears had been in existence since my time in the military.” During his February 2021 hearing, the Veteran said he did not recall exactly when his tinnitus began, but that it was “probably” less than a year after separation. The June 2017 VA Examination states that the Veteran’s tinnitus started “about fifteen years ago,” but the Veteran has consistently maintained that the examiner misunderstood him, and that he has always claimed that his tinnitus started during or shortly after his military service. (In other words, about fifty years before he spoke to the VA examiner.) Tinnitus is readily observable by laypersons, and medical expertise is not required to establish its existence. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Board accepts the Veteran’s testimony as credible and, resolving reasonable doubt in his favor, finds that his tinnitus manifested within one year of separation from service. The Board acknowledges the negative nexus opinion in the June 2017 VA examination. However, the Board does not need to reach the weight assignable to this opinion because service connection is granted presumptively under 38 C.F.R. § 3.303(b) for the “chronic” disease of tinnitus, 38 C.F.R. § 3.309(a), rather than on a direct basis. The Board finds that the evidence shows that Veteran’s tinnitus began within a year after service and has continued since then. 38 C.F.R. § 3.303(b), 3.309(a). Entitlement to service connection for tinnitus is granted. 38 C.F.R. § 3.303. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shermila Sundquist 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.