Citation Nr: 18160508
Decision Date: 12/28/18	Archive Date: 12/26/18

DOCKET NO. 15-18 417A
DATE:	December 28, 2018
ORDER
Service connection for left ear hearing loss (HL) is denied.
An initial compensable rating for service-connected right ear HL is denied.
FINDINGS OF FACT
1. The Veteran’s preexisting left ear HL did not increase in severity in service.
2. The Veteran’s right ear has an auditory acuity level of II.
CONCLUSIONS OF LAW
1. The criteria for service connection for left ear HL have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.385 (2018).
2. The criteria for an initial compensable rating for service-connected right ear HL have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.85, 4.86 Diagnostic Code 6100 (2018).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from January 1967 to May 1974.  This matter is on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA).  Additional evidence that became available after the last adjudication of this matter in April 2015 (statement of the case) is reviewed initially by the Board of Veterans’ Appeals (Board) herein, as the right to have the Regional Office do so is waived.  38 U.S.C. § 7105(e)(1) (automatic waiver if there is no written indication to the contrary when the substantive appeal is received on or after February 2, 2013); 38 C.F.R. § 20.1304(c) (waiver by the Veteran or his representative).  The September 2015 motion of the Veteran’s representative to withdraw was granted by the Board in August 2018.  
Preliminary Matters
VA has a duty to notify a claimant seeking VA benefits.  38 U.S.C. § 5103; 38 C.F.R. § 3.159.  Notice must be provided prior to initial adjudication of the evidence necessary to substantiate the benefit(s) sought, that VA will seek to obtain, and that the claimant should submit.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Notice of how ratings and effective dates are assigned also must be provided.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  
VA also has a duty to assist a claimant seeking VA benefits.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  This includes, as suggested by the duty to notify, aiding the claimant in the procurement of relevant records whether they are in government custody or the custody of a private entity.  38 U.S.C. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3).  A VA medical examination also must be provided and/or a VA medical opinion rendered when necessary for adjudication.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  
Service connection, the original benefit sought with respect to right ear HL, already has been granted.  Notice concerning downstream issues like a higher initial rating (in this case, to a compensable level) is not required.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  For left ear HL, full notification was provided prior to initial adjudication via the September 2014 rating decision.  It indeed accompanied the claim form (Fully Developed Claim – VA 21-526EZ) submitted by the Veteran.  Service treatment and personnel records concerning him are available.  His post-service VA and private treatment records also are available.  There is no indication of any outstanding records.  In August 2014, the Veteran underwent a VA medical examination which included the rendering of an opinion.
Significantly, no argument has been raised about any duty to notify or assist deficiencies.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (procedural arguments that are not raised need not be addressed); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist); Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (concerning the duty to notify).  Only the most relevant evidence must be discussed in adjudicating the issues.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  This decision accordingly only addresses it as well as that required to address any arguments raised.  Scott, 789 F.3d at 1375; Robinson v. Peake, 21 Vet. App. 545 (2008).  
Service Connection – Left Ear HL
Service connection means that an injury or disease resulting in disability was incurred during or, if preexisting, aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection thus requires a current disability, the incurrence or aggravation of an injury or disease during service, and a causal relationship/nexus between them.  Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009).  When there is an approximate balance of positive and negative evidence on service origin or any other point, the claimant must be afforded the benefit of the doubt.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The applicable standard thus is at least as likely as not.
The Veteran contends that he has left ear HL as a result of being exposed to loud noise during service.  HL is a disability for VA purposes when the pure tone threshold at any frequency from 500 to 4000 Hertz is 40 decibels or greater, the pure tone threshold at three or more such frequencies is 26 decibels or greater, or speech recognition scores using the Maryland CNC test are less than 94 percent.  38 C.F.R. § 3.385.  The Veteran’s left ear met each of these criteria at the August 2014 VA medical examination.  As such, he has left ear HL as a current disability.  He also was exposed to loud noise during service, which was conceded in the granting of service connection for right ear HL.  Indeed, his reports of working in the noisy transmitter room is consistent with his service personnel records.  His reports that this work was aboard ship, which fired its guns, also is consistent with the ship’s command history narrative.
Except for any defects identified upon medical examination, a veteran is presumed to be in sound condition upon entrance into service.  38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  Normal hearing is from 0 to 20 decibels.  Hensley v. Brown, 5 Vet. App. 155 (1993).  However, a threshold greater than 20 decibels does not signify a defect for presumption of soundness purposes unless there is a disability for VA purposes (under 38 C.F.R. § 3.385).  McKinney v. McDonald, 28 Vet. App. 15 (2016).  The Veteran’s service entrance examination was in August 1966.  Prior to January 1, 1967, pure tone thresholds were reported in standards set forth by the American Standards Association (ASA).  Since December 31, 1970, they have been reported in standards set forth by the International Standards Organization - American National Standards Institute (ISO-ANSI).  
Thresholds reported in ASA standards are converted to ISO-ANSI standards by adding between 5 and 15 decibels as follows:
Hertz	500	1000	2000	3000	4000	6000
Add	15	10	10	10	5	10

Converting the thresholds from the Veteran’s August 1966 entrance examination (presumably reported in ASA standards), to ISO-ANSI standards results in:
	Hertz
	500	1000	2000	3000	4000	6000
Left	15	10	10	40	45	Not tested

The 40 decibels at 3000 Hertz and 45 decibels at 4000 Hertz arises to the level of a disability for VA purposes (40 decibels or greater under 38 C.F.R. § 3.385).  As such, HL in the Veteran’s left ear was noted when he entered service.  The presumption of soundness thus does not apply.  This means that the Veteran’s claim is one of aggravation by service rather than incurrence during service.
A preexisting injury or disease is presumed to have been aggravated by service when there is an increase in disability during service, unless it was due to natural progression.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).  The disability itself must worsen in a way that is measurable and lasting, as opposed to there being temporary or intermittent flare-ups of its symptoms only.  Routen v. Brown, 10 Vet. App. 183 (1997); Verdon v. Brown, 8 Vet. App. 529 (1996).  The Veteran had a service separation examination in April 1974.  His pure tone thresholds, which were noted to be reported in ISO standards, were as follows:
	Hertz
	500	1000	2000	3000	4000	6000
Left	10	5	0	40	45	55

At 3000 and 4000 Hertz, this represents no change from his August 1966 service entrance examination.  There was no significant decrease in the Veteran’s left ear hearing or increase in severity/worsening of his preexisting left ear HL during service, in other words.  
The opinion rendered at the August 2014 VA medical examination was that the Veteran’s preexisting left ear HL was not aggravated beyond natural progression during service for this reason.  This opinion is entitled to substantial probative weight because it is based on an accurate medical history and provides an explanation with supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The Veteran has not made any argument to counter it.  The presumption of aggravation, in sum, does not apply.  Additional support for this conclusion comes from an August 1976 examination concerning the Veteran’s fitness for reserve duty.  He denied hearing loss at that time.  His pure tone thresholds, which were noted to be reported in ISO-ANSI standards, were as follows:
	Hertz
	500	1000	2000	3000	4000	6000
Left	5	5	0	40	35	45

This represents no change at 3000 Hertz and an improvement of 5 decibels at 4000 Hertz in comparison to during service.  Thus, in conclusion, the Veteran’s preexisting left ear HL remained stable in terms of severity during service as well as for at least a little over two years thereafter (separation in May 1974 to the August 1976 examination).  Service connection for left ear HL is denied based on the preponderance of the evidence.  It follows that there is no benefit of the doubt to afford to the Veteran.  
Higher Initial Rating – Right Ear HL
Ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  A rating is assigned under the Rating Schedule by comparing the extent to which a claimant’s disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the criteria for the disability.  Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The disability’s history and all other relevant evidence is considered.  38 C.F.R. §§ 4.1, 4.6.  Examinations are to be interpreted and, if necessary, reconciled.  38 C.F.R. § 4.2.  
If two ratings are potentially applicable, the higher rating is assigned if the disability more nearly approximates the criteria required for it.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability, or any other point, is resolved in favor of the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Different ratings may be assigned for different periods of time for the same disability, a practice known as staging the rating.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).
HL is rated pursuant to 38 C.F.R. §§ 4.85 and 4.86, Diagnostic Code 6100.  Auditory acuity is measured by a pure tone threshold test in the frequencies of 1000, 2000, 3000 and 4000 cycles per second (hertz) and the Maryland CNC controlled speech discrimination test.  38 C.F.R. § 4.85(a), (d).  There are eleven auditory acuity levels of hearing impairment, ranging from level I for essentially normal hearing to level XI for profound deafness.  38 C.F.R. § 4.85(b), (c).  Based on the intersection point of the auditory acuity level for each ear, a rating for hearing impairment is derived from Table VII.  38 C.F.R. § 4.85(e).  If HL in one ear is nonservice-connected, that ear is assigned an auditory acuity level of I.  38 C.F.R. § 4.85(f).
The auditory acuity level for each ear usually is derived from Table VI, which considers the pure tone threshold average and the speech discrimination percentage.  38 C.F.R. § 4.85(b).  Table VIa, which considers only pure tone threshold average, is used when use of the speech discrimination percentage is not appropriate.  38 C.F.R. § 4.85(c).  For an exceptional pattern of hearing loss, when either the pure tone threshold at 1000, 2000, 3000, and 4000 hertz is 55 decibels or more or the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz, the auditory acuity level is derived from Table VI or Table VIa depending on which results in the higher level.  38 C.F.R. §§ 4.86(a), (b).  The derived level further is elevated by one when the pure tone threshold is 30 decibels or less at 1000 hertz and 70 decibels or more at 2000 hertz.  38 C.F.R. § 4.86(b).
In September 2013, the Veteran underwent a private assessment of his HL.  His pure tone thresholds were reported in graph form.  Conversion into numeric form is proper when possible.  Savage v. Shinseki, 24 Vet. App. 259 (2011); Kelly v. Brown, 7 Vet. App. 471 (1995).  The Board finds it possible here.  Specifically, the Veteran’s pure tone thresholds, in decibels, were as follows:
	Hertz
	1000	2000	3000	4000
Right	20	35	70	65

His average was 48 (rounded from 47.5) decibels in the right ear.  No speech/word discrimination results were set forth.
The Veteran’s pure tone thresholds, in decibels, were as follows at the August 2014 VA medical examination:  
	Hertz
	1000	2000	3000	4000
Right	25	40	60	65

His average was 48 (rounded from 47.5) decibels in the right ear.  The Maryland CNC test revealed speech discrimination of 84 percent in this ear.
Finally, a November 2016 VA treatment record reflects a third assessment of the Veteran’s hearing.  His pure tone thresholds, in decibels, were as follows:
	Hertz
	1000	2000	3000	4000
Right	40	50	65	75

His average was 58 (rounded from 57.5) decibels in the right ear.  The speech reception threshold was noted to agree with this average.  Word recognition further was noted to be excellent.  However, no percentage was set forth, and the test used was not specified.
The Board finds, given the above, that a higher initial rating for the Veteran’s service-connected right ear HL is not warranted.  A rating is derived from the auditory acuity level assigned based on the pure tone threshold average and/or speech discrimination percentage.  Lendenmann v. Principi, 3 Vet. App. 345 (1992).  Pure tone thresholds in the Veteran’s right ear do not represent an exceptional pattern of hearing loss.  As such, the auditory acuity level for this ear is derived from Table VI.  The pure tone threshold average and speech discrimination percentage from the August 2014 VA medical examination results in the assignment of Level II to the right ear under this table.  The Veteran’s nonservice-connected left ear is assigned Level I.  Under Table VII, the intersection point of auditory acuity level II in the poorer ear with auditory acuity Level I in the better ear corresponds to a noncompensable initial rating.  
Although the September 2013 private assessment apparently did not include speech/word discrimination, the pure tone average was the same as that from the August 2014 VA medical examination.  This is a strong indication that the Veteran’s right ear HL was about the same severity at the assessment as it was at the examination.  It was noncompensable at the assessment as well as at the examination a year later, in other words.  Another strong indication is that, even if the Veteran’s right ear auditory acuity level at the assessment is derived from his pure tone average only by using Table VIa, the result is the assignment of Level II.  Level II also was assigned at the examination.  The initial rating at the assessment thus would be noncompensable, just like at the examination a year later.  
With respect to the November 2016 VA assessment, a compensable initial rating is foreclosed even without the exact speech/word discrimination percentage by its characterization as excellent.  Table VII shows that the Veteran’s poorer right ear would have to be assigned an auditory acuity level of X or XI to qualify him for even the lowest compensable initial rating of 10 percent (because the nonservice-connected left ear is assigned level I).  Per Table VI, the assignment of level IX is not made until speech discrimination is 36-42 percent, and level XI is not assigned until it is 0-34 percent (level X is skipped in the assignments) when the pure tone average is 58.  The range at which speech discrimination is characterized as excellent is not clear to the Board, as it was not specified in the assessment and is not specified by relevant statute, regulation, or caselaw.  Yet, it clearly does not include the lowest possible percentages 0-42 of concern here.  
Continuance of the Veteran’s initial noncompensable rating for the entire period on appeal, in sum, is supported by the medical evidence.  The lay (non-medical) evidence consists of statements from him.  It also supports this continuance.  He indeed reports hearing but not clearly such that he does not fully understand what is said, difficulty hearing in noisy environments such as group situations and at a distance, not hearing when the speaker is not facing him, and not hearing high frequency sounds such as beepers and sirens.  He also reports having to turn up the volume of his television, needing his wife to repeat things said, and wearing hearing aids.  All of this was taken into account at the VA medical examination.  Martinak v. Nicholson, 21 Vet. App. 447 (2007).  None can be translated into the required pure tone average and speech discrimination percentage needed for more precise analysis.
In conclusion, an initial compensable rating for the Veteran’s service-connected right ear HL is denied based on the preponderance of the evidence.  As such, there is no doubt to resolve in his favor.  Further discussion is not necessary because no issues have been raised.  Doucette v. Shulkin, 28 Vet. App. 366 (2017) (issues need not be addressed unless raised).  
 
THERESA M. CATINO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Becker, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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