Citation Nr: 18148987 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-41 181 DATE: November 8, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT Repeated audiological testing shows that the Veteran has had no more than Level III hearing loss in the right ear and Level III hearing loss in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to November 1970. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating. The Veteran timely appealed the initial rating assigned. 1. Bilateral Hearing Loss The Veteran seeks a compensable rating for bilateral hearing loss. He contends that the rating currently assigned does not reflect the severity of his disability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence ‘used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I for essentially normal acuity through Level XI for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the puretone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The “puretone threshold average” is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that the use of speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of section 4.86. 38 C.F.R. § 4.85(c). Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the puretone thresholds in any four of the five frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz are 55 decibels or greater. The second is where puretone thresholds are 30 decibels or less at frequencies of 1,000 Hertz and below, and are 70 decibels or more at 2,000 Hertz. See 38 C.F.R. § 4.86. Applying the facts in this case to the applicable legal criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for bilateral hearing loss. In this case, the Veteran has undergone repeated audiometric examination to evaluate his bilateral hearing acuity that indicate the Veteran does not meet the criteria for a compensable rating. The Veteran underwent a VA-authorized audiological examination in January 2013 in connection with his claim. He reported difficulty hearing and understanding particularly in more challenging listening situations. Examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 30 60 55 LEFT 20 20 35 65 65 The average pure tone thresholds were 41.25 decibels on the right and 46.25 decibels on the left. Speech discrimination testing using the Maryland CNC word list was 80 percent in the right ear and 76 percent in the left ear. These examination results indicate that the Veteran’s hearing loss was at Level III in the right ear and Level III in the left ear. Under Tables VIa and VII in the Rating Schedule, therefore, the criteria for a compensable rating have not been met with respect to these audiometric findings. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has also considered the provisions of 38 C.F.R. § 4.86, but the results of this audiometric examination shows that the alternative table is not applicable. The Veteran submitted a January 2013 private audiological evaluation that similarly establishes that his hearing loss measured on audiogram was not severe enough to meet the criteria for a compensable rating set forth in sections 4.85 and 4.86. Examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 25 35 60 LEFT 10 20 35 60 65 The average pure tone thresholds were 33.75 decibels on the right and 45 decibels on the left. Although speech discrimination testing showed 88 percent in the right ear and 92 percent in the left ear, because the test was not performed using the Maryland CNC word list, it does not meet the applicable legal criteria. In September 2016, the Veteran underwent another VA audiological examination. He reported that he had a hard time understanding people talking. Examination showed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 35 65 65 LEFT 15 20 35 70 75 The average pure tone thresholds were 45 decibels on the right and 50 decibels on the left. Speech discrimination testing using the Maryland CNC word list was 84 percent in both the right and left ear. These examination results indicate that the Veteran’s hearing loss was at Level II in the right ear and Level II in the left ear. Under Tables VIa and VII in the Rating Schedule, therefore, the criteria for a compensable rating have not been met with respect to these audiometric findings. 38 C.F.R. § 4.85, Diagnostic Code 6100. The Board has also considered the provisions of 38 C.F.R. § 4.86, but the results of this audiometric examination shows that the alternative table is not applicable. In support of his claim, the Veteran submitted lay statements from his wife and R.B, showing that he has difficulty discerning words in conversation, particularly in noisy environments. See October 2012 Buddy/Lay Statements. The Veteran has also reported difficulty understanding and participating in conversations, as well as, talking louder than necessary due to low-frequency sounds of background noise. See also August 2016 and June 2017 Correspondence. Although the Board finds these statements credible, it finds that these factors do not provide a sufficient basis on which to award a compensable rating for bilateral hearing loss. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In this case, as explained above, the numeric designations correlate to a noncompensable disability rating. In reaching this decision, the Board has also considered whether an extraschedular rating is warranted with respect to the Veteran’s bilateral hearing loss. Bagwell v. Brown, 9 Vet. App. 157 (1996) (the question of extraschedular rating is a component of a claim for an increased rating). For the following reasons, an extraschedular rating is not warranted. The record does not show, nor does the Veteran contend, that he has been frequently hospitalized due to his service-connected bilateral hearing loss. Similarly, there is no evidence demonstrating that the Veteran’s service-connected bilateral hearing loss disability markedly interferes with his employment, beyond that contemplated by the rating schedule. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran’s bilateral hearing loss has been evaluated under the applicable diagnostic code that specifically contemplates the level of occupational impairment caused by the disability. The Board has considered the findings of the January 2013 and September 2016 VA examination reports, in which the Veteran’s hearing loss causes difficulty hearing and understanding speech in challenging listening situations. However, difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board therefore finds that referral for consideration of an extraschedular evaluation in this case is not warranted. For the foregoing reasons, the preponderance of the evidence is against a compensable rating for bilateral hearing loss. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel