Citation Nr: 21032092 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 20-21 088 DATE: May 25, 2021 ORDER Entitlement to an initial compensable rating prior to December 27, 2019, and in excess of 10 percent thereafter, for service-connected bilateral hearing loss is denied. Entitlement to service connection for herpes simplex, mouth, is denied. FINDINGS OF FACT 1. Prior to December 27, 2019, the Veteran's hearing loss manifested by no worse than Level III acuity in the right ear and no worse than Level III acuity in the left ear. 2. From December 27, 2019, the Veteran's hearing loss manifested by no worse than Level III acuity in the right ear and no worse than Level V acuity in the left ear. 3. The preponderance of the evidence is against a finding that the Veteran's herpes simplex, mouth, had onset in, or is otherwise related to, his military service. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to December 27, 2019, and in excess of 10 percent thereafter, for service-connected bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2020). 2. The criteria for service connection for herpes simplex, mouth, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1964 to June 1967. The Veteran was scheduled for a Board hearing in May 2021; in May 2021, however, he requested to "withdraw his pending appeal and have his case decided with evidence currently on record." As he requested to have his case decided with the evidence currently on record, the Board has accepted this statement to mean that he wants to withdraw his hearing, and not the appeal itself. There are no additional requests for a hearing of record. As such, the Board considers the Veteran's request for a hearing satisfied. Increased Ratings Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from the disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Ratings for hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. Id. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). At the Veteran's initial October 2016 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 45 100 105 LEFT 25 60 75 100 These results show an average pure tone threshold of 69 in the right ear and 65 in the left ear. The October 2016 VA examiner reported speech discrimination scores of 84 percent in the right ear and 84 percent in the left ear and indicated that use of the speech discrimination score was appropriate for the Veteran. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85 and Table VI, the levels of hearing impairment based on the Veteran's pure tone threshold average and speech discrimination score are assigned a numeric designation of Level III for the right ear and Level III for the left ear. Combining Level III hearing for the right ear and Level III for the left ear according to Table VII yields a rating of zero percent. At the Veteran's December 2019 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 50 95 100 LEFT 25 70 80 100 These results show an average pure tone threshold of 68 in the right ear and 69 in the left ear. The December 2019 VA examiner reported speech discrimination scores of 86 percent in the right ear and 84 percent in the left ear and indicated that use of the speech discrimination score was appropriate for the Veteran. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85 and Table VI, the level of hearing impairment based on the Veteran's pure tone threshold average and speech discrimination score is assigned a numeric designation of Level III for the right ear. However, he had an exceptional pattern of hearing in the left ear because the pure tone threshold at 1000 Hertz was 25, and the pure tone threshold at 2000 Hertz was 70. 38 C.F.R. § 4.86(b). Pursuant to Table VI, the Veteran had Level III hearing loss in the left ear. The Veteran had Level V in the left ear pursuant to Table VIA. Combining Level III hearing for the right ear and Level V for the left ear according to Table VII yields a rating of 10 percent. The Veteran is competent to report the symptoms of his hearing disability and the Board has no legitimate basis to challenge the credibility of these contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, as discussed above, hearing loss is evaluated using a mechanical application of the rating criteria to certified test results. The lay statements of record do not show that the Veteran has met the specific pure tone thresholds and/or speech discrimination percentages required for a higher rating for bilateral hearing loss than the ratings assigned. Additionally, the Board has considered the functional impact of the Veteran's bilateral hearing loss disability. The October 2016 VA examiner noted that his report that he must ask people to repeat themselves. See October 2016 VA audiological examination report. The December 2019 VA examiner noted that the Veteran reported some difficulties hearing conversational speech especially when communicating in noisy environments. See December 2019 VA audiological examination. The Court has specifically held that the schedular criteria for rating hearing loss contemplates the functional effects of difficulty hearing and understanding speech, such as those reported by the Veteran. Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). In sum, the preponderance of the evidence is against the Veteran's claim for an initial compensable rating from prior to December 27, 2019; and a disability rating in excess of 10 percent from December 27, 2019, for his service-connected bilateral hearing loss. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, given the mechanical method of deriving schedular ratings for hearing loss, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection The Veteran claims entitlement to service connection for herpes simplex, mouth. He contends that, to the best of his recollection, this virus started appearing shortly after being released from the Armed Forces. See February 2020 Statement. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). There is no dispute that the Veteran has a current diagnosis of herpes simplex. His post-service treatment records document an ongoing diagnosis of herpes simplex for which he receives medication. See March 2009, March 2012, January 2013, November 2014, and February 2016 private treatment records. Therefore, the Veteran has demonstrated a current disability and has satisfied the first element of service connection. At issue is whether herpes simplex was caused by or incurred in service. Service treatment records are silent as to any complaints, relevant findings, treatment, or diagnosis of herpes simplex, mouth. The Veteran's Report of Medical Examination at the time of his release from active duty notes a normal skin exam. See May 1967 Report of Medical Examination. The Veteran's post-service treatment records on file do not show complaints of herpes simplex, mouth, or any symptoms of this condition, until March 2009, more than 40 years after service. The first indication of herpes simplex in the record is a March 2009 progress note. Though the record indicates that the Veteran was asked to provide medical evidence of herpes simplex during service, to date, there is no evidence of record relating herpes simplex to service. The Board acknowledges that the Veteran has not been afforded a VA examination regarding this claim. However, in the absence of any evidence suggesting that herpes simplex may be related to service, VA's duty to assist by providing an examination has not been triggered. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Based on the above, the Board finds that a preponderance of the lay and medical evidence of record weighs against the claim for service connection for herpes simplex, mouth, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.