Citation Nr: 21028725 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-23 146A DATE: May 11, 2021 ORDER Entitlement to an initial compensable rating for right ear hearing loss is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to 10 percent evaluation based on multiple, non-compensable, service-connected ratings under 38 C.F.R. § 3.324 is remanded. FINDING OF FACT The right ear hearing has been manifested by hearing acuity of no worse than Level I in the right ear. CONCLUSION OF LAW The criteria for a compensable rating for right ear hearing loss are not 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 FINDING AND CONCLUSION The Veteran had active military service from July 1979 to October 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing on July 9, 2018. The hearing transcript is of record. Entitlement to an initial compensable disability for right ear hearing loss is denied. The Veteran contends entitlement to a compensable rating because the hearing loss symptoms had worsened since the prior March 2014 VA examination. 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). An August 2019 VA examination reveals that the Veteran reported that conversations were difficult ("People have to repeat what they say to me. I ask them to always look at me when they speak, so I can hear them."). 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: August 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 40 40 45 38 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear (service connection is not in effect for the left ear) to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. See 38 C.F.R. § 4.85(f). An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's right ear hearing loss is not warranted. There is no other competent evidence of record demonstrating a greater level of hearing impairment. The Board acknowledges its consideration of the lay evidence of record when adjudicating this claim, including that conversation were difficult. 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 probative evidence is against the claim of entitlement to a compensable rating for right 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). The claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. Once VA undertakes to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In August 2019, the Veteran underwent a VA examination. The VA examiner opined that the Veteran had normal hearing on separation with thresholds too low for any permanent significant shift in hearing thresholds to have occurred from entrance. The VA examiner found that this was evidence of no permanent auditory damage on active duty. The VA examiner noted that there was no report of decreased hearing in claims file or at separation. Although, noise exposure during service was conceded and the relationship between noise and auditory damage and hearing loss was well documented, the Veteran's current auditory damage and hearing loss were not conceded based on in-service noise alone and therefore the VA examiner found that a nexus was not established. The August VA medical opinion is inadequate because it does not consider all the relevant evidence of record, including lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Further, 38 C.F.R. § 3.385, establishes that service connection for a current hearing disability is not precluded where hearing was within normal limits at separation (see Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993), but that is where the VA examiner's analysis in this case stopped. The Veteran testified during the July 2018 hearing that he did not have hearing problems prior to service, was not exposed to any hazardous levels of loud noises with inadequate protection since service in the military, that hearing was no better in one ear versus the other, and also explained why hearing loss treatment was not sought sooner. The undersigned Veterans Law Judge found that the Veteran presented as truthful and credible at the hearing. The Board finds that the August 2019 VA medical opinion is inadequate as it does not address the Veteran's medical history. Further evidentiary development is warranted. 2. Entitlement to 10 percent evaluation based on multiple, non-compensable, service-connected ratings under 38 C.F.R. § 3.324 is remanded. Finally, because a decision on the remanded issue of entitlement to service connection for left ear hearing loss could significantly impact a decision on the issue of entitlement to a 10 percent evaluation based on multiple non-compensable service-connected ratings under 38 C.F.R. § 3.324, the issues are inextricably intertwined. In July 2015, the Veteran submitted a statement with an Appeal to Board explaining how the Veteran's service-connected disabilities, including residuals of a right thumb fracture, affected the Veteran's ability to work. Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities the rating agency is authorized to apply a 10-percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. A remand of the claim of entitlement to 10 percent evaluation based on multiple non-compensable service-connected ratings under 38 C.F.R. § 3.324 is required. The matters are REMANDED for the following actions: 1. Acquire updated VA and private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's left ear hearing loss. The examiner must review the claims file, including a copy of this remand order and the Veteran's July 2018 hearing transcript. The Veteran denied hearing problems prior to service. The Veteran denied that hearing was better in one ear versus the other. The Veteran also explained why hearing loss treatment was not sought sooner. The undersigned Veterans Law Judge found the Veteran's testimony truthful and credible. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion below. The examiner is asked to provide a response to the following: Is left ear hearing loss at least as likely as not related to service, including noise exposure during service? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In rendering this opinion, the examiner is advised that the Veteran has been found to be credible in reporting symptoms and hearing loss history. Such reports must be acknowledged and considered in formulating any opinion. (Continued on the next page) Provide a rationale to support the opinions. The rationale must extend beyond a discussion of the Veteran's service treatment records and the Veteran's separation examination. The clinician should also address the Veteran's right ear hearing loss and, if necessary, distinguish its cause from any left ear hearing loss. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.