Citation Nr: 18144583 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 14-10 975 DATE: October 25, 2018 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entirety of the Veteran’s appeal, the Veteran’s bilateral hearing loss has been manifested by no more than Roman numeral II in his right ear and Roman numeral II in his left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met for entirety of the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1972 to September 1975 and from October 1980 to January 1985. Entitlement to a compensable rating for bilateral hearing loss Disability ratings for hearing loss disability are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Other than exceptional cases, VA arrives at the proper designation by mechanical application of Table VI, which determines the designation based on results of standard test parameters. 38 C.F.R. § 4.85, DC 6100 (2016). Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional hearing impairment occurs when pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) are 55 decibels or more, or when the pure tone threshold are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. In such cases, 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. Each ear is to be evaluated separately. 38 C.F.R. § 4.86 (2016). The Board acknowledges that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in final audiological report. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Merits A review of the evidence of record reveals that the Veteran was afforded (3) VA audiological examinations for compensation purposes in October 2016, October 2012, and August 2012. (1) During the October 2016 audiological examination, pure tone thresholds, in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Average Right 5 15 30 55 50 31 Left 10 10 30 70 60 36 Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. The Board will now follow the mechanical application of 38 C.F.R. 4.85. First, utilizing Table VI, the Veteran’s right ear hearing loss results are placed within the parameters of “Roman numeral I” for his examination in October 2016. See 38 C.F.R. § 4.85, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination - Table VI. Turning to the Veteran’s left ear, the hearing loss results for this ear are placed within the parameters of “Roman numeral I” for his October 2016 examination. Id. Second, utilizing Table VII, the Board has taken the results, for rating purposes results, from Table VI, “Roman numeral I” for the right ear and “Roman Numeral I” for the left ear. When placing these two results, “Roman numeral I” and “Roman numeral I,” within Table VII to determine the rating the results indicate that the Veteran’s bilateral hearing disability falls within a noncompensable rating evaluation. See 38 C.F.R. § 4.85 Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100) - Table VII. (2) During the October 2012 audiological examination, pure tone thresholds, in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Average Right 15 15 20 55 55 32 Left 15 15 35 70 65 40 Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 90 percent in the right ear and 86 percent in the left ear. The Board will now follow the mechanical application of 38 C.F.R. 4.85. First, utilizing Table VI, the Veteran’s right ear hearing loss results are placed within the parameters of “Roman numeral II” for his examination in October 2012. See 38 C.F.R. § 4.85, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination - Table VI. Turning to the Veteran’s left ear, the hearing loss results for this ear are placed within the parameters of “Roman numeral II” for his October 2012 examination. Id. Second, utilizing Table VII, the Board has taken the results, for rating purposes results, from Table VI, “Roman numeral II” for the right ear and “Roman Numeral II” for the left ear. When placing these two results, “Roman numeral II” and “Roman numeral II,” within Table VII to determine the rating the results indicate that the Veteran’s bilateral hearing disability falls within a noncompensable rating evaluation. See 38 C.F.R. § 4.85 Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100) - Table VII. (3) During the August 2012 audiological examination, pure tone thresholds, in decibels, were as follows: Hertz 500 1000 2000 3000 4000 Average Right 15 15 20 55 55 32 Left 15 15 35 70 65 40 Maryland CNC Word List Speech Recognition Score revealed speech recognition ability of 90 percent in the right ear and 86 percent in the left ear. The Board will now follow the mechanical application of 38 C.F.R. 4.85. First, utilizing Table VI, the Veteran’s right ear hearing loss results are placed within the parameters of “Roman numeral II” for his examination in August 2012. See 38 C.F.R. § 4.85, Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination - Table VI. Turning to the Veteran’s left ear, the hearing loss results for this ear are placed within the parameters of “Roman numeral II” for his August 2012 examination. Id. Second, utilizing Table VII, the Board has taken the results, for rating purposes results, from Table VI, “Roman numeral II” for the right ear and “Roman Numeral II” for the left ear. When placing these two results, “Roman numeral II” and “Roman numeral II,” within Table VII to determine the rating the results indicate that the Veteran’s bilateral hearing disability falls within a noncompensable rating evaluation. See 38 C.F.R. § 4.85 Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100) - Table VII. Consideration has also been given to the Veteran’s personal assertions in support of his claim. The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as listening to the television at higher volumes or lip reading to assist in understanding conversations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2). But as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including audiometric testing for pure tone thresholds and speech recognition scores. The VA examination reports from October 2016, October 2012, and August 2012 all provided auditory evidence placing the Veteran’s bilateral hearing loss at a noncompensable rating evaluation. The Board is sympathetic to the Veteran’s claims, however, the auditory threshold and speech discrimination evidence provided to the Board does not demonstrate that the Veteran’s hearing loss warrants a compensable rating. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The Board had also considered whether an extraschedular rating is warranted for the service-connected bilateral hearing loss during the relevant period on appeal. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1) (2016). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular rating criteria for rating hearing loss provide for disability ratings based on audiometric evaluations, to include speech discrimination and pure tone testing. Here, 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 conversations in a crowded room, which cause difficulties functioning in social environments. 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. The ability of the Veteran to hear sounds and voices is measured and rated by an audiometric test, as this test measures different frequencies and captures high frequency hearing loss from sources including voices, music, sirens, and certain high-pitched sounds. The ability of the Veteran to understand people is rated by a speech recognition test, as this test measures conversation comprehension, words, and missed conversations. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. See Doucette, 28 Vet. App. 366 (holding “that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech”). 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. The regulatory history of 38 C.F.R. §§ 4.85 and 4.86 includes revisions, effective June 10, 1999. See 64 Fed. Reg. 25,202 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran’s Health Administration (VHA) in developing criteria that contemplated situations in which a veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that, when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIa were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17,295 (Apr. 12, 1994). The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran’s difficulties functioning in a social environment due to hearing loss. Accordingly, the Board finds that the Veteran’s reported hearing-related difficulties are factors contemplated in the regulations and schedular rating criteria. See Doucette, 28 Vet. App. 366 (holding that “the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure... an inability to hear or understand speech or to hear other sounds in various contexts... are contemplated by the schedular rating criteria”). Gayle Strommen Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Acosta