HEARING LOSS

KATHERINE KIEMLE BUCKLEY · 2022 · Case ID: A22005012

DENIED

Summary

The Veteran, who served in the United States Air Force from June 1960 to October 1968, appeals the denial of service connection for left ear hearing loss and a compensable rating for right ear hearing loss. The Veteran sought to reopen the left ear hearing loss claim, which was previously denied in 1989 due to pre-existing condition, arguing that new and relevant evidence had been submitted. However, the Board found that the additional VA and private treatment records submitted in 2021 merely documented a current diagnosis and did not provide new and relevant evidence to prove or disprove service connection, nor did they raise a new theory of entitlement. The Board noted that the question of a current diagnosis for the left ear was conceded in 1989 and was not at issue. Therefore, the claim for left ear hearing loss was denied readjudication. For the right ear hearing loss, the Veteran sought a compensable rating. A July 2021 VA examination showed significant hearing loss in both ears, but applying the rating schedule, the findings equated to a non-compensable disability rating under Diagnostic Code 6100. The Board considered the Veteran's lay testimony regarding his difficulties but found the audiometric testing results to be the most probative evidence, which weighed against a compensable rating. The appeal for a compensable rating for right ear hearing loss was denied.

Rationale

New and relevant evidence not received; Prior decision final due to no appeal and no timely new/material evidence; Additional treatment records did not address service connection

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

6100

Docket No.

220127-215352

Full Decision Text

Citation Nr: A22005012
Decision Date: 03/22/22 Archive Date: 03/22/22

DOCKET NO. 220127-215352
DATE: March 22, 2022

ORDER

New and relevant evidence having not been received, the application to readjudicate the matter of entitlement to service connection for left ear hearing loss is denied.

Entitlement to a compensable disability rating for service-connected right ear hearing loss is denied.

FINDINGS OF FACT

1. A February 1989 rating decision denied the Veteran's claim of entitlement to service connection for left ear hearing loss on the basis that it pre-existed service; he did not perfect an appeal of that decision nor was evidence received within one year prior to expiration of the appeal period. The decision became final.

2. Evidence received since the February 1989 RO decision is cumulative and redundant of the evidence previously of record and is not relevant to the claim of entitlement to service connection for left ear hearing loss.

3. The Veteran's right ear hearing has been manifested by hearing acuity of no worse than Level VIII in the right ear; left ear hearing loss is not currently service-connected.

CONCLUSIONS OF LAW

1. New and relevant evidence has not been received, and readjudication of the claim of entitlement to service connection for left ear hearing loss is not required. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(d).

2. The criteria for a compensable disability rating for right ear hearing loss have not been 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 FINDINGS AND CONCLUSIONS

The Veteran served in the United States Air Force from June 1960 to October 1968.

In July 2021, the Veteran filed a claim for bilateral hearing loss.

These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2021 rating decision and a December 2021 supplemental claim rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The August 2021 rating decision denied a compensable rating for service-connected right ear hearing loss. The December 2021 supplemental claim rating decision denied the petition to readjudicate the previously denied claim for service connection for left ear hearing loss on the basis that the evidence submitted was not new and relevant.

In the January 2022 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. He listed the issue on appeal as the petition to reopen the previously denied claim for service connection for left ear hearing loss. However, he listed the August 2021 rating decision as the decision on appeal, wherein the RO denied an increased rating for right ear hearing loss. Given these facts, the Board elects to liberally interpret the Veteran's form to be seeking readjudication of the previously denied claim for service connection for left ear hearing loss and entitlement to a compensable rating for service-connected right ear hearing loss. Both issues are on appeal.

As the Veteran elected the Direct Review docket in the January 2022 VA Form 10182, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301.

The new and relevant evidentiary standard to reopen the claim for service connection for left ear hearing loss is the current standard under the Appeals Modernization Act (AMA). 38 C.F.R. §§ 3.2501(a)(1), 19.2. The prior standard in the legacy appeal system, instead, was new and material evidence. 38 C.F.R. § 3.156.

1. Whether new and relevant evidence has been received to readjudicate a claim of entitlement to service connection for left ear hearing loss.

The Veteran seeks readjudication of a previously denied claim of service connection for left ear hearing loss. After reviewing the additional evidence added to the record since the previous denial of the Veteran's claim, the Board finds that new and relevant evidence has not been added to the record. Therefore, the claim will not be readjudicated.

Under the current AMA standard, VA will reopen and readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). New evidence is evidence not previously part of the actual record before agency adjudicators. "Relevant evidence" is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a
.

The Veteran's original claim of entitlement to service connection for left ear hearing loss was denied in a February 1989 rating decision, based upon a finding that his left ear hearing loss pre-existed his military service. He did not appeal the decision and new and material evidence was not submitted within one year of its issuance; as such, the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

At the time of the February 1989 rating decision, the pertinent evidence of record included service treatment records, statements of the Veteran, private audiology records, and a November 1988 VA examination documenting a diagnosis of left ear hearing loss sufficient for VA compensation purposes.

In July 2021, the Veteran filed a supplemental claim to readjudicate the matter of entitlement to service connection for left ear hearing loss. A December 2021 rating decision declined to readjudicate the claim. The Veteran filed a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) in January 2022 and requested direct review of his claim by a Veterans Law Judge.

VA and private treatment records were added to the claims file prior to and following submission of the July 2021 supplemental claim. These treatment records are new, but not relevant to the claim of service connection as these records document only that the Veteran has a current diagnosis of left ear hearing loss, for which he receives VA audiological treatment. Significantly, the question of a current diagnosis as to the left ear hearing loss had been conceded at the time of the February 1989 rating decision and is thus a matter not at issue.

After reviewing the totality of the evidence, the Board finds that the evidence associated with the claims file after the February 1989 rating decision is not new and relevant.

VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). Relevant evidence is evidence that tends to prove or disprove a matter at issue. Id. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.

As detailed above, the evidence received after the February 1989 denial does not tend to prove or disprove a matter at issue, i.e. whether the current left ear hearing loss was incurred in or aggravated by the Veteran's military service. Accordingly, the record contains no new and relevant evidence sufficient to readjudicate said claim. Therefore, the claim may not be readjudicated, and the appeal is denied.

The Board recognizes that, in the March 2022 Informal Hearing Presentation, the Veteran, through his representative, asserted that the pre-existing left ear hearing loss was aggravated beyond its natural progression due to hazardous noise exposure from his MOS. See Informal Hearing Presentation dated March 2022. However, as the Veteran elected the Direct Review docket, the Board may not consider evidence that was added to the claims file after the December 2021 decision. 38 C.F.R. § 20.300. Therefore, this theory of entitlement may not be considered herein as a basis for readjudicating the Veteran's claim. Rather, the Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id.

Increased Rating

2. Entitlement to a compensable rating for right ear hearing loss

The Veteran contends that he is entitled to a compensable rating for right ear hearing loss.

Evaluations of defective hearing range from noncompens
December 2021 decision. 38 C.F.R. § 20.300. Therefore, this theory of entitlement may not be considered herein as a basis for readjudicating the Veteran's claim. Rather, the Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id.

Increased Rating

2. Entitlement to a compensable rating for right ear hearing loss

The Veteran contends that he is entitled to a compensable rating for right ear hearing loss.

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, DC 6100.

To evaluate the degree of disability from 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 nonservice-connected hearing loss meets the standard for a hearing loss disability for VA purposes under 38 C.F.R. § 3.385, unless the nonservice-connected hearing loss is the result of the appellant's willful misconduct. See 38 C.F.R. § 3.383. To determine the percentage evaluation from Table VII, the nonservice-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).

In this matter, the Veteran filed a claim of entitlement to a compensable rating for service-connected right ear hearing loss in July 2021. For the reasons set forth below, the Board finds that the Veteran's claim must be denied.

July 2021 VA records show the Veteran complained of experiencing feedback from his hearing aids, but he refused to wear the custom earmolds with his hearing aids.

A VA examination was conducted in August 2021. The report reveals Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:

August 2021 HERTZ

1000 2000 3000 4000 Avg CNC

RIGHT 60 75 105 105 86 60%

LEFT 50 80 95 100 81 56%

The Veteran reported his main difficulty was understanding someone talking, watching television and [conversations] on the phone. He stated he could not hear a smoke alarm or his phone ring. He also stated it effected his sleeping. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007).

Based on the evidence above, a compensable rating for the Veteran's right ear hearing loss is not warranted.

Applying the results to Table VI, the August 2021 VA examination findings yield a numeric designation of no higher than a Level VIII in the right ear. As the left ear is not currently service-connected, the left ear is 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
. He also stated it effected his sleeping. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007).

Based on the evidence above, a compensable rating for the Veteran's right ear hearing loss is not warranted.

Applying the results to Table VI, the August 2021 VA examination findings yield a numeric designation of no higher than a Level VIII in the right ear. As the left ear is not currently service-connected, the left ear is 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). Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level I for the nonservice-connected left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.

Notably, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in the findings of the August 2021 VA examination. However, no higher rating is warranted under the results of Table VIA.

Applying the results to Table VIA yields no higher than a Level VIII in the right ear. Once again, the nonservice-connected left ear is assigned a level I per VA regulations. See 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). Entering the resulting bilateral numeric designation of Level VIII for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, yields the same results; it equates to a non-compensable disability rating under Diagnostic Code 6100.

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty with noisy situations, understanding someone talking, watching television, and in phone conversations. The Board also considered the Veteran's complaints of difficulty hearing a smoke alarm and his phone ringing. 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 appellant 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 most probative evidence of record persuasively weighs against the claim of entitlement to a compensable rating for right ear hearing loss. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The appeal for a compensable rating for right ear hearing loss is denied.

Katherine Kiemle Buckley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Pendleton, N.

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.

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