HEARING LOSS

A. ODYA-WEIS · 2026 · Case ID: A26027797

GRANTED

Summary

The veteran, who served in the U.S. Navy from January 1977 to May 1977, appeals the denial of service connection for right ear hearing loss and an initial disability rating for bilateral hearing loss. The veteran claimed his right ear hearing loss was incurred during service due to a loud noise event. The Board considered evidence from a January 2021 VA examination, which found the veteran's right ear hearing loss less likely than not related to service, attributing it to a perforated tympanic membrane not documented as occurring in service. Conversely, a December 2024 private medical opinion from the veteran's treating provider found it at least as likely as not that the hearing loss was incurred during service, citing a history of chronic right TM perforation from a loud noise exposure. The Board found both opinions to be thorough, well-reasoned, competent, and credible. Weighing the probative value, the Board determined the evidence regarding service connection for right ear hearing loss was in equipoise. Applying the benefit of the doubt, service connection for right ear hearing loss was granted. For bilateral hearing loss, the Board reviewed multiple audiological examinations. The May 2021 VA examination indicated a 40 percent disability rating based on specific audiometric thresholds and speech recognition scores. The Board found this rating warranted and granted the 40 percent disability rating for bilateral hearing loss. The claim for tinnitus was deemed moot as it had already been granted service connection by the agency of original jurisdiction.

Rationale

Private medical opinion found at least as likely as not service-related; VA examination found less likely than not service-related; Evidence found to be in equipoise; Benefit of the doubt resolved in veteran's favor

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210602-163393

Full Decision Text

Citation Nr: A26027797
Decision Date: 03/26/26 Archive Date: 03/26/26

DOCKET NO. 210602-163393
DATE: March 26, 2026

ORDER

Entitlement to service connection for right ear hearing loss is granted.

Entitlement to an initial disability rating of 40 percent for bilateral hearing loss is granted.

Entitlement to service connection for tinnitus is moot.

FINDINGS OF FACT

1. The Veteran's right ear hearing loss was incurred during his period of active service.

2. The Veteran's right ear hearing loss manifests in Level VII impairment, and left ear hearing loss manifests in Level VIII impairment.

3. Service connection for tinnitus is in effective since the date of claim.

CONCLUSIONS OF LAW

1. The criteria for service connection for right ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for an initial disability rating of 40 percent, but not higher, for bilateral hearing loss have 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.

3. The issue of entitlement to service connection for tinnitus has been resolved in full; the appeal is moot. 38?U.S.C. §?7105; 38?C.F.R. §?20.801.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty with the United States Navy from January 1977 to May 1977.

The rating decision on appeal was issued in May 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the June 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on December 6, 2024.

Therefore, the Board may only consider the evidence of record at the time of the May 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran, or his representative, at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) 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[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist that occurred prior to the rating decision on appeal. See Scott v. McDonald,
Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record.

Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist that occurred prior to the rating decision on appeal. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

1. Entitlement to service connection for right ear hearing loss

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The Veteran claims entitlement to service connection for right ear hearing loss. The Veteran contends that his right ear hearing loss was incurred during his period of active service and testified to an in-service loud noise event that caused his ears to ring for a few days. In a January 2021 hearing loss and tinnitus examination, the Veteran reported going to the ear doctor for treatment since his completion of military service. In a March 2021 hearing loss and tinnitus examination, the Veteran reported the onset of his hearing loss was 1977 during his period of active service.

At the outset, the Board notes that the May 2021 rating decision on appeal lists a favorable finding that the Veteran does have a current diagnosis of right ear hearing loss. Further, the May 2021 rating decision does acknowledge that the Veteran's military occupational specialty of electrical/mechanical equipment repairman is consistent with a high probability of exposure to hazardous noise levels.

In May 2021, The Veteran completed a hearing loss and tinnitus examination. The examination included and in-person examination of the Veteran and review of his medical treatment records. Following examination, the examiner concluded that it was less likely than not that the Veteran's right ear hearing loss was incurred during his period of active service. The examiner reasoned:

Veteran has a perforated tympanic membrane and the hearing loss in the right ear is more consistent with middle ear abnormality than with noise-induced hearing loss. No in service records indicate the right tympanic membrane perforation occurred while in the military; therefore, the veteran's right ear hearing loss is less likely than not (less than 50% probability) caused by or a result of military noise exposure.

The Board finds the May 2021 medical opinion to be thorough, well-reasoned, competent, and credible. The May 2021 medical opinion is highly probative evidence against the Veteran's claim for service connection.

Conversely, in December 2024, during a period eligible for evidence submission, the Veteran submitted a private medical opinion from his treating provider regarding his right ear hearing loss. The Veteran's treating provider determined it was at least as likely as not that the Veteran's right ear hearing loss was incurred during his period of active service. The provider reasoned:

As noted in the record, [Veteran] has a known [history of] chronic right TM perforation and monomer of the left; the initial perforations occurred after a loud noise exposure in military; this did require treatment by ENT at the time; there is reported hearing loss since; he is now monitored regularly by ENT for cleanings, further hearing loss and infection due to chronic condition. Hearing loss and perforation can be cause by sudden loud noise exposure and is
submission, the Veteran submitted a private medical opinion from his treating provider regarding his right ear hearing loss. The Veteran's treating provider determined it was at least as likely as not that the Veteran's right ear hearing loss was incurred during his period of active service. The provider reasoned:

The Board finds the December 2024 medical opinion to be thorough, well-reasoned, competent, and credible. The December 2024 medical opinion is highly probative evidence in favor of the Veteran's claim for service connection.

The Board finds that the probative medical evidence regarding the Veteran's claim for service connection for right ear hearing loss is in equipoise. In Lynch v. McDonough, 21 F.4th 776 (2021), the Federal Circuit held that a veteran is entitled to the benefit of the doubt when the evidence is in approximate balance, or nearly equal, and does not require that the evidence be in exact equipoise for benefit of the doubt to apply. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for right ear hearing loss is warranted, and the claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Entitlement to an initial compensable disability rating for bilateral hearing loss

As a result of this Board decision, the Veteran's right ear hearing loss is a service-connected disability. Accordingly, the Veteran's claim for entitlement to a compensable disability rating for left ear hearing loss has been re-characterized to a claim for entitlement to an initial compensable disability rating for bilateral hearing loss.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examinations. Evaluations of hearing impairment 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), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. The rating criteria establish eleven auditory acuity levels designated from I to XI. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2019). Table VIa establishes a Roman numeral designation based only on the pure tone threshold average. 38 C.F.R. § 4.85(c) (2019). However, Table VIa will only be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.85(c).

Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the pure tone threshold at each of the four specified frequencies (1000,
calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2019). Table VIa establishes a Roman numeral designation based only on the pure tone threshold average. 38 C.F.R. § 4.85(c) (2019). However, Table VIa will only be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.85(c).

Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a) (2019). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b).

In this case, on the authorized audiological evaluation in May 2021, pure tone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000 Avg.

RIGHT 60 45 60 45 52.5

LEFT 60 75 85 85 76.25

Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 58 percent in the right ear and of 56 percent in the left ear. This results in an exceptional pattern of hearing impairment in the left ear, however use of Table VIa result in a lower numeral designation. Table VI is more beneficial to the Veteran.

Applying the results to Table VI yields a finding of Level VII hearing loss in the right ear and a finding Level VIII hearing loss in the left ear. Where hearing loss is at Level VII in the right ear and Level VIII in the left ear, a 40 percent disability rating is assigned under Table VII in 38 C.F.R. § 4.85.

A prior examination of the Veteran's hearing loss was completed in March 2021. At examination, pure tone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000 Avg.

RIGHT 55 55 60 45 54

LEFT 50 70 85 80 71

Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 94 percent in the right ear and of 60 percent in the left ear. The results do not present an exceptional pattern of hearing impairment.

Applying the results to Table VI yields a finding of Level 1 hearing loss in the right ear and a finding Level VII hearing loss in the left ear. Where hearing loss is at Level I in the right ear and Level VII in the left ear, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85.

A prior examination of the Veteran's hearing loss was completed in January 2021. At examination, pure tone thresholds, in decibels, were as follows:

HERTZ

1000 2000 3000 4000 Avg.

RIGHT 55 40 65 55 54

LEFT 55 70 90 90 76

Speech audiometry using the Maryland CNC word list revealed speech recognition ability of 86 percent in the right ear and of 80 percent in the left ear. The results do present an exceptional pattern of hearing impairment in the left ear. Using Table VIa provides the Veteran with a higher numeral designation for hearing loss.

Applying the results to Table VIa yields a finding of Level III hearing loss in the right ear and a finding Level VI hearing loss in the left ear. Where hearing loss is at Level III in the right ear and Level VI in the left ear, a 10 percent rating is assigned under Table VII in 38 C.F.R. § 4.85.

Based on a review of the evidence, the Board finds that a 40 percent disability evaluation is warranted. During the period on appeal the Veteran's right ear hearing loss manifested, at worst, in Level VII impairment. His left ear hearing loss manifested, at worst, in Level VIII impairment. A mechanical application of the rating criteria shows the Veteran's hearing loss disability meets the criteria for a 40 percent disability rating, but no higher. In reaching this conclusion, the Board has determined that the VA medical examinations are highly probative evidence.

All the Veteran's hearing loss symptoms and described hearing impairments are contemplated by the schedular rating criteria. The Veteran's hearing loss disability has manifested in difficulty hearing speech, which causes difficulties functioning in social and occupational environment, and requires the use of hearing aids. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss in various contexts, as measured by both audiometric testing and speech recognition testing. Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Entitlement to an initial disability rating of 40 percent for bilateral hearing loss is granted.

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3. Entitlement to service connection for tinnitus

The Veteran's claim for entitlement to service connection for tinnitus is moot. The Veteran was granted service connection for tinnitus in a June 2021 rating decision, effective December 29, 2020, the date of the Veteran's claim. As the benefit sought in this appeal has been fully granted, no determination remains with which the Veteran disagrees and the appeal is therefore dismissed. 38?U.S.C. §?7105(d).

A. Odya-Weis

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Riordan, 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.

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