Citation Nr: 21024187 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-11 649 DATE: April 22, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to a compensable initial rating for left ear hearing loss is denied. REMANDED Entitlement to service connection for alcohol dependence, secondary to posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had right ear hearing loss for VA purposes at any time during or approximate to the pendency of the claim. 2. The Veteran’s left ear hearing has been manifested by hearing acuity of no worse than Level I in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for a compensable rating for left ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2004 to April 2013. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, a hearing was held before the undersigned. In a February 2021 letter, the Veteran was informed that the Board was unable to produce a complete transcript of the proceeding due to audio malfunctions heard throughout the testimony in the Digital Audio Recording System. The Veteran was provided with the option of another hearing, and notified that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not desire another hearing and would proceed accordingly. The Veteran did not respond to the letter. Therefore, the Board will proceed to adjudicate the appeal. 1. Entitlement to service connection for right ear hearing loss The Veteran asserts that he is entitled to service connection for right ear hearing loss due to exposure to loud noise in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; the thresholds for at least three of these frequencies are 26 or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The December 2013 VA examination report reveals that the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 15 15 20 16.5 96 LEFT 15 15 20 50 25 100 As the Veteran’s speech discrimination score in the right ear was greater than 94 percent, he did not have an auditory threshold of 40 decibels or greater in any frequency, and did not have an auditory threshold of 26 decibels or greater in at least three frequencies, hearing loss for VA purposes has not been established by this examination report. The remainder of the record does not otherwise reveal evidence of current right ear hearing loss for VA purposes. The Board notes that a January 2013 in-service audiologic evaluation, dated within one year of the Veteran’s claim, indicates the Veteran had pure tone thresholds, in decibels, at 20 or below from 1000 to 4000 Hertz, and above 40 at 6000 Hertz. As the Veteran’s right ear hearing was in pure tone thresholds at 20 or below from 1000 to 4000 Hertz, the audiometric test results do not indicate that the Veteran had hearing loss disability in the right ear for VA purposes. While the Veteran believes he has a current diagnosis of right ear hearing loss, he does not have the medical expertise to diagnose a hearing loss disability for VA purposes. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In the absence of probative evidence of a current right ear hearing loss disability, the Board finds that the preponderance of the evidence is against the claim. Therefore, the claim for service connection for right ear hearing loss is denied. 2. Entitlement to a compensable initial rating for left ear hearing loss The Veteran contends that he is entitled to a higher rating for his service-connected left ear hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). If impaired hearing is service-connected in only one ear, the law allows for compensation for hearing loss as if both ears were service-connected if the service-connected hearing loss is ratable as at least 10 percent disabling and the non-service-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the non-service-connected hearing loss is the result of the Veteran’s willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). A December 2013 VA examination report reveals that the Veteran reported having hearing loss symptoms since 2005. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 15 15 20 16.5 96 LEFT 15 15 20 50 25 100 Applying the results to Table VI, the findings yield a numeric designation of Level I in the left ear. This is combined with the numeric designation of Level I in the right ear, by reason of it being nonservice-connected. 38 C.F.R. § 4.85(f). Entering the resulting numeric designation of Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. There are no other audiometric tests of record, and no evidence indicating the Veteran’s left ear hearing loss has changed since the December 2013 VA examination. A January 2017 VA treatment record noted that the Veteran was service-connected for several conditions, including left ear hearing loss, and he reported no changes. Based on the evidence above, a compensable rating for the Veteran’s left ear hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his report of having difficulty hearing. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for left ear hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for alcohol dependence, secondary to PTSD The Veteran has asserted that he has alcohol dependence, secondary to his service-connected PTSD. Service connection for alcohol dependence on a direct basis is precluded by law, but is not precluded on a secondary basis. See 38 U.S.C. § 105(a); 38 C.F.R. § 3.301(a). In a March 2016 VA Form 9, the Veteran stated that he believed his alcohol dependence was a result of his PTSD and stated that he struggled with alcoholism to this day. The Veteran’s VA treatment records, including a May 2017 record, reflect that he has had “chronic alcoholism in remission” during the appeal period. An undated service separation report indicates that the Veteran had alcohol dependence secondary to PTSD. The Board cannot make a fully-informed decision on the issue of whether the Veteran has alcohol dependence, secondary to PTSD, because no VA examiner has opined whether the Veteran has alcohol dependence that was caused or aggravated by his service-connected PTSD. Therefore, the claim must be remanded to obtain an etiology opinion. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination addressing alcohol dependence, secondary to PTSD. The examiner must review the claims file. The examiner is asked to provide a response to the following: Does the Veteran have alcohol dependence that is at least as likely as not proximately due to PTSD? Does the Veteran have alcohol dependence that is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by PTSD? A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, 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.