Citation Nr: 18140870 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-27 878 DATE: October 9, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Whether new and material evidence has been received to reopen service connection for a right knee disability is remanded. REFERRED A petition to reopen a claim for service connection for a left knee disability was raised in a September 18, 2012 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDING OF FACT The objective findings correspond to no more than a 0 percent rating for bilateral hearing loss. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.21, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to a compensable rating for bilateral hearing loss Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of 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 puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). Based on the below analysis, the Veteran’s hearing loss does not warrant a rating higher than 0 percent. On the authorized audiological evaluation in April 2016, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 50 40 40 LEFT 45 65 65 65 60 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 70 percent in the left ear. Considering the results of the April 2016 examination under Table VI, the Veteran had level I hearing on the right side and level V hearing on the right side. Neither ear showed an exceptional pattern of hearing impairment. Under Table VII, a Roman numeral I is assigned for the right ear and a V for the left ear, which corresponds to a 0 percent evaluation. The Veteran noted on her VA examination in April 2016 that she could not hear people talking when they were on her left side and that she had to read lips to hear conversations.   On the authorized audiological evaluation in July 2018, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 30 40 50 40 40 LEFT 45 70 65 65 61 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 74 percent in the left ear. Considering the results of the July 2018 examination under Table VI, the Veteran had level I hearing on the right side and level V on the left side. Neither ear showed an exceptional pattern of hearing impairment. Under Table VII, a Roman numeral I is assigned for the right ear and a V is assigned for the left ear, which corresponds to a 0 percent evaluation. The Veteran noted on her VA examination in July 2018 that if a person was not standing in front of her, she could not hear the person, or if they were on the side or back of her. The Veteran’s representative argued in an August 2018 statement that while the Veteran’s reported symptoms were noted on her examinations, the examiners did not provide a description as to how these difficulties affected her ability to function during ordinary activity of her daily life. However, the Board, in fact, finds that the examinations are sufficient, as the Veteran’s lay statements sufficiently describe how her hearing loss disability affects her daily life. The examiner also provided the clinical evaluation based on her hearing acuity. The Board acknowledges the Veteran’s contentions and notes that she is competent to report her hearing difficulties. See Charles v. Principi, 16 Vet. App. 370 (2002). Notwithstanding, a higher rating is not warranted based solely on lay statements. See Lendenmann. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321 (a). The Veteran reported difficulty hearing especially when someone was not standing in front of her and also noted that she had to read lips to understand. However, this does not present an exceptional or unusual disability picture, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. The Veteran’s service-connected hearing loss is manifested by symptoms of difficulty hearing, which are encompassed within the rating criteria under Diagnostic Code 6100. The Board finds that the rating criteria adequately describe the Veteran’s disability level and symptomatology. In addition, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIa were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (The rating criteria for hearing loss contemplate the functional effects of decreased hearing, as well as difficulty understanding speech, in an everyday work environment.). Entitlement to an extraschedular rating pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Finally, the Board has considered whether a claim for unemployability has been raised by the record. Here, the record does not suggest that the Veteran is unemployable as a result of her service-connected hearing loss. Therefore, the Board concludes that entitlement to a total disability rating based on individual unemployability has not been raised at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen service connection for a right knee disability is remanded. The Veteran indicated that her right knee disability might be secondary to a nonservice-connected left knee injury in service in 1977, or may have begun during her active duty service. As noted above, the Board has referred the issue of a petition to reopen the claim for service connection for a left knee disability that was raised by the record. The Veteran had multiple periods of active duty service from July 31, 1977 to December 9, 1989, and retired from the U.S. Army Reserve in February 2011. She had an operation on her right knee in July 2011. However, a review of the claims file does not find that her complete service treatment records have been obtained. The matter is REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records from July 31, 1977 to December 9, 1989. She retired from the U.S. Army Reserve in February 2011. (Continued on the next page)   2. Once the AOJ has adjudicated the issue of the petition to reopen the claim of entitlement to service connection for a left knee disorder as set forth in the above referral portion of this decision, conduct any further development deemed necessary, to include providing a VA examination to address the etiology of the right knee disability to include on a direct and secondary service connection basis, if appropriate. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond