Citation Nr: 21029392 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-53 052 DATE: May 13, 2021 ORDER Entitlement to service connection for right ear hearing loss is denied. Entitlement to an initial compensable rating for left ear hearing loss is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of right ear hearing loss for VA purposes. 2. The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than level II in the left ear and level I in the right ear. CONCLUSIONS OF LAW 1. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309, 3.382. 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. §§ 3.383, 3.385, 4.1, 4.3, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to September 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in September 2017. A transcript of the hearing is associated with the Veteran's claims folder. This case was previously before the Board in November 2019, on which occasion the claims were remanded. 1. Entitlement to service connection for right ear hearing loss. The Veteran contends that he is entitled to service connection for right ear hearing loss. The Board notes that he is currently service connected for hearing loss of the left ear. The question for the Board is whether he has a disability due to impaired hearing of the right ear that began during service or is at least as likely as not related to an in-service injury, event, or disease. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See 38 U.S.C. § 1110; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Specific to claims for service connection for hearing loss, impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000 or 4000 Hertz (Hz) is 40 decibels or greater; or the threshold for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385. At the outset, the Board acknowledges the Veteran's military occupational specialty as an armor crewman and finds that acoustic trauma is consistent with the circumstances of his service. In-service incurrence is therefore not in dispute. The Board concludes that the Veteran does not have a current diagnosis of right ear hearing loss for the purposes of VA disability compensation and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In this regard, the Veteran's hearing acuity was tested during a June 2013 VA audiology consultation. (10/12/2017, CAPRI, p. 48). His speech discrimination score using the Maryland CNC test was 96 percent in the right ear. His reported Puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 10 15 In August 2013 the Veteran underwent a VA audiology examination. (8/29/2013, VA Examination, p. 3). The VA examiner evaluated the Veteran and determined that his speech discrimination score using the Maryland CNC test was 100 percent. The Veteran's reported Puretone thresholds in decibels for his right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 15 25 In March 2016 the Veteran's hearing acuity was tested during a VA otolaryngology consultation. (12/28/2020, CAPRI, p. 450). His speech discrimination score using the Maryland CNC test was 96 percent in the right ear. His reported Puretone thresholds in decibels were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 05 15 15 In March 2017 the Veteran underwent another VA audiology examination. (3/6/2017, C&P Exam, p. 1). However, as noted in the Board's November 2019 decision, the March 2017 examination report is unreadable. As the examination report was unusable, the Board remanded the claim and ordered a new examination. In accordance with the Board's November 2019 remand directives, the Veteran was afforded another VA audiology examination in December 2020. (12/23/2020, C&P Exam, p. 3). The VA examiner evaluated the Veteran and determined that his speech discrimination score using the Maryland CNC test was 96 percent. The Veteran's reported Puretone thresholds in decibels for his right ear were: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 10 15 25 Based on the objective medical evidence, the Board concludes that the Veteran's right ear hearing impairment is not a disability for VA compensation purposes. In this regard, the Veteran's auditory thresholds were below 26 decibels at the frequencies of 500, 1000, 2000, 3000, and 4000 Hz throughout the period on appeal. Additionally, his lowest speech recognition score was 96 percent. As the competent medical evidence does not demonstrate that the Veteran's right ear hearing loss rises to the level of a disability in accordance with 38 C.F.R. § 3.385, service connection is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to an initial compensable rating for left ear hearing loss is denied. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Disability ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by Puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability for service-connected hearing loss, the Rating Schedule contains eleven auditory acuity levels, designated from Level I through Level XI. 38 C.F.R. § 4.85 (h), Tables VI, VIa. The results of the Puretone audiometry tests and speech discrimination tests are charted on Table VI, or on Table VIa for exceptional cases described in 38 C.F.R. § 4.86. Table VII prescribes the disability rating based on the relationship between the values for each ear derived from Table VI. See 38 C.F.R. § 4.85. If impaired hearing is service-connected in only one ear the non-service-connected ear will be assigned an auditory acuity level of I. See 38 C.F.R. § 4.85(f). The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids. The rating criteria also provides for rating exceptional patterns of hearing impairment when the Puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, or when the Puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In such cases, each ear is evaluated separately, and the Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIA, whichever results in the higher numeral. Id. In the present case, the Veteran is service connected for left ear hearing loss and has been assigned a noncompensable rating. Upon review of the record, the Board finds that a compensable rating is not warranted. In this regard, the Veteran's hearing acuity was tested during a June 2013 VA audiology consultation. (10/12/2017, CAPRI, p. 48). His speech discrimination scores using the Maryland CNC test were 96 percent in the right ear and 100 percent in the left ear. His reported Puretone thresholds in decibels were: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 5 5 10 15 9 LEFT 10 15 20 30 19 The Veteran was afforded a VA audiology examination in August 2013. (8/29/2013, VA Examination, p. 3). His speech discrimination scores using the Maryland CNC test were 100 percent in the right ear and 94 percent in the left ear. His reported Puretone thresholds in decibels were: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 15 10 15 25 16 LEFT 15 15 25 40 24 In March 2016 the Veteran's hearing acuity was tested during a VA otolaryngology consultation. (12/28/2020, CAPRI, p. 450). His speech discrimination scores were 96 percent in the right ear and 96 percent in the left ear. His reported Puretone thresholds in decibels were: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 15 5 15 15 12.5 LEFT 20 20 35 45 30 The Veteran was afforded another VA audiology examination in December 2020. (12/23/2020, C&P Exam, p. 3). His speech discrimination scores using the Maryland CNC test were 96 percent in the right ear and 88 percent in the left ear. His reported Puretone thresholds in decibels were: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 15 10 15 25 16 LEFT 15 15 30 35 24 Based on the objective medical evidence of record, the Board finds that the Veteran's left ear hearing loss most nearly approximates level II in the left ear. As the Veteran is not service connected for hearing loss of the right ear and his right ear hearing impairment does not rise to the level of a disability for VA compensation purposes, the Board will assign a Roman Numeral of I for the purpose of determining a percentage evaluation. See 38 C.F.R. § 4.85(f). These results fall within the schedular criteria for a noncompensable rating. The Board has additionally considered whether the Veteran has demonstrated exceptional patterns of hearing impairment in accordance with 38 C.F.R. § 4.86. The Board concludes that 38 C.F.R. § 4.86(a) does not apply in this case, as the Veteran's Puretone threshold of the left ear at 1000 Hertz was less than 55 decibels. Likewise, 38 C.F.R. § 4.86(b) does not apply, as his Puretone threshold at 2000 Hertz was less than 70 decibels. The Board acknowledges its consideration of the lay evidence of record when adjudicating this claim. While the Veteran is competent to report difficulty with his hearing, 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). In sum, the Board finds that the totality of the evidence demonstrates that the disability picture for the Veteran's left ear hearing loss warrants a noncompensable rating for the entire period contemplated by this appeal. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.