Citation Nr: 21025165 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-13 618 DATE: April 27, 2021 ORDER Service connection for right ear hearing loss is granted. A compensable rating for bilateral (previously left ear) hearing loss is denied. FINDINGS OF FACT 1. The Veteran’s right ear hearing loss had its onset in service and has been continuous since service. 2. Throughout the period on appeal, audiometric testing revealed, at worst, Level I hearing impairment in the right ear and Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. 2. The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to December 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which in pertinent part, denied the Veteran’s claim to establish service connection for a right ear hearing loss disability and granted service connection for left ear hearing loss with an assigned noncompensable (zero percent) effective from August 31, 2011. The Veteran timely appealed the initial noncompensable rating and the denial for his right ear hearing loss. The Board remanded the claim in March 2018, January 2020, and January 2021 to obtain an adequate VA nexus opinion due to inadequacies in previously obtained opinions. The claim has been returned to the Board. Service connection for right ear hearing loss The Veteran contends that he has right ear hearing loss from exposure to acoustic trauma in service due to his work as a Pershing missile crewman. Service connection for a disability requires competent and credible evidence of the following: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a relationship or nexus between the current disability and any injury or disease during service. See Hickson v. West, 12 Vet. App. 247, 252 (1999). In addition, the presumption of service connection set forth in 38 C.F.R. § 3.303(b) attaches to certain diseases enumerated in 38 C.F.R. § 3.309(a), including hearing loss. See Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2013). Initially, the Board finds that the evidence of record reflects that the Veteran has right ear hearing loss for VA purposes. 38 C.F.R. § 3.385. The question is whether such hearing loss is related to military service. The Veteran’s personnel records show that his military occupational specialty in service was a Pershing missile crewman. In addition, he is service connected for his left ear hearing loss and tinnitus based on exposure to noise in service. Thus, acoustic trauma in service is conceded. Service treatment records also show the Veteran had a shift in auditory thresholds during his military service. See the September 1966 entrance examination and the October 1968 separation examination. Ultimately, the separation audiogram data reflects worsening hearing acuity in the Veteran’s right ear when compared to his entrance audiogram data. In this regard, it demonstrates a shift of 10 decibels at 500 Hz in the right ear and 5 decibels in the 1000, 2000 and 4000 Hz. The Veteran was afforded VA examinations in December 2011, October 2019, March 2020, and January 2021. As the Board previously found that the other negative nexus opinions were inadequate, the Board will only discuss the January 2021 VA opinion. The January 2021 VA examiner found that although the left ear hearing loss was related to service because a significant shift greater than 10 decibels at 4000 Hz occurred, the Veteran’s right ear hearing loss was not due to his military service because his right ear hearing was normal in service and there was no shift in hearing thresholds in the right ear during military service. It was noted that a significant shift in hearing is indicative of cochlear damage. However, as noted, service treatment records note a threshold shift of at least 10 decibels at 500 Hz in the right ear during service from entrance examination to separation examination. The examinations also show threshold shifts of at least 5 decibels at 1000 and 4000 Hz in the right ear. It is unclear as to whether the VA audiologist considered these shifts as not “significant”. In this regard, the examiner did not explain why 10 decibels is not considered abnormal variability in shift in auditory thresholds. In addition, the absence of a hearing loss disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss 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, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. Hensley v. Brown, 5 Vet. App. 155, 158-60 (1993). As there is no adequate explanation given for why the Veteran’s threshold shift in service in the right ear was not considered significant, the probative value of the January 2021 VA medical opinion is diminished. Because of this, and because the Veteran’s exposure to acoustic trauma in service is conceded and he has been granted service connection for left ear hearing loss and tinnitus based on this exposure to acoustic trauma in service, and the Veteran has related the onset of his hearing loss to service, all reasonable doubt is resolved in the Veteran’s favor that his right ear hearing loss also should be service connected. In conclusion, the criteria for service connection for right ear hearing loss is met and the claim is granted. Increased rating for hearing loss The Veteran contends that he is entitled to a higher rating for his bilateral hearing loss (previously characterized as left ear hearing loss). Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from zero to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. See id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss. 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). The ratings for disability compensation for hearing loss are determined by the mechanical, meaning nondiscretionary, application of the criteria in Table VI and Table VII. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In addition, under 38 C.F.R. § 4.86(a), when the puretone threshold at each of the four specified frequencies, 1000, 2000, 3000, and 4000 Hz, is 55 decibels or more, 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. Under 38 C.F.R. § 4.86(b), when the pure tone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results is the higher numeral. That numeral will then be elevated to the next higher Roman numeral. The December 2011 VA examination report upon which service connection for left ear hearing loss was granted, shows that the Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 Average Speech RIGHT 15 15 15 40 26 96 LEFT 5 10 55 60 32 96 Applying the results to Table VI, the findings yield a numeric designation of Level I hearing acuity in both ears. Combining these levels according to Table VII results in a noncompensable (zero percent) rating.   An October 2019 VA examination reveals that Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels were as follows: HERTZ 1000 2000 3000 4000 Average Speech RIGHT 10 15 25 55 26 96 LEFT 10 20 60 60 38 88 Applying the results to Table VI, the findings yield a numeric designation of Level I hearing acuity in the right ear and Level II hearing acuity in the left ear. Combining these levels according to Table VII results in a noncompensable (zero percent) rating. After a review of all of the evidence, lay and medical, the Board finds that the weight of the evidence is against a compensable disability rating for the entire increased rating period on appeal. The Veteran’s level of hearing loss disability, as reflected by audiometric test scores and speech recognition test scores, does not establish entitlement to a compensable disability rating for bilateral hearing loss for any part of the increased rating period. The Board acknowledges the statements of the Veteran regarding the effect of his bilateral hearing loss disability on his daily life and his contention that his hearing loss disability is worse than is reflected by the VA audiological examination results. However, the Board finds that these statements alone do not warrant a higher disability rating. Indeed, as noted above, the audiometric test scores and speech recognition scores weigh against the assignment of a higher rating. Moreover, as noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to numeric designations assigned to official audiometric results. See Lendenmann, 3 Vet. App. at 345. Further, there is nothing to indicate that the either the 2013 or 2019 VA audiological examinations are either unreliable or otherwise inadequate. Indeed, they are the most probative evidence of record. For these reasons, the claim for a compensable disability rating for bilateral hearing loss is denied for the entire increased rating period on appeal. The preponderance of the evidence is against this claim; therefore, the benefit-of-the-doubt doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hemphill 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.