Citation Nr: 18156016 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-55 261 DATE: December 6, 2018 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss is manifested by a puretone threshold average of 43 decibels in the right ear, and 46 decibels in the left ear, and speech discrimination scores of 94 percent in the right ear and 96 percent in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.10, 4.85, 4.86 Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1964 to March 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which granted service connection for bilateral hearing loss and assigned an initial noncompensable rating, effective March 21, 2016. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Bilateral Hearing Loss Hearing loss is evaluated under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. In evaluating hearing loss, disability ratings are derived from a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests using the Maryland CNC word list, in conjunction with the average hearing threshold, measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. 38 C.F.R. § 4.85, DC 6100. The rating schedule establishes eleven auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. See id. VA audiometric examinations are generally conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. Id. Table VI in 38 C.F.R. § 4.85 is then used to determine the numeric designation of hearing impairment based on the puretone threshold average derived from the audiometry test, and from the results of the speech discrimination test. The horizontal rows in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See id. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometry test. Id. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row corresponding to the percentage of discrimination and the vertical column corresponding to the puretone decibel loss. Id. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of “V” and the poorer ear has a numeric designation Level of “VII,” the percentage evaluation is 30 percent. See id. There are alternative criteria for certain exceptional patterns of hearing loss. Specifically, if puretone thresholds in each of the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, an evaluation will be based either on Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in a higher evaluation. 38 C.F.R. § 4.86(a) (2017). Each ear will be evaluated separately. Id. When the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be chosen from either Table VI or Table VIa under 38 C.F.R. § 4.85, whichever results in the higher Roman numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Analysis The Veteran’s service-connected bilateral hearing loss is currently rated as zero-percent disabling under 38 C.F.R. § 4.85, DC 6100. A November 2014 hearing screening by an outside provider is of record, but the Maryland CNC word list was not used for speech discrimination testing, as required. See 38 C.F.R. § 3.385 (requiring that audiometric testing be performed using the Maryland CNC controlled speech discrimination test). Rather, the report shows that speech recognition was tested with the W22 word list. Accordingly, the report is not adequate for VA rating purposes. A June 2016 VA examination report shows that the Veteran’s right ear had a puretone threshold average of 43 dB, and a speech discrimination score of 94 percent. The left ear had a puretone threshold average of 46 dB, and a speech discrimination score of 96 percent. With respect to the right ear, the point where a puretone threshold average of 43 dB intersects with a speech discrimination score of 94 percent yields a numeric designation of I. With respect to the left ear, the point where a puretone threshold average of 46 dB intersects with a speech discrimination score of 96 percent also yields a numeric designation of I. The point where designations I and I (as derived from Table VI) intersect on Table VII yields a 0 percent or noncompensable rating under DC 6100. See 38 C.F.R. § 4.85. Accordingly, the criteria for a compensable rating have not been demonstrated by a mechanical application of the rating schedule. The Veteran’s puretone thresholds do not reflect the exceptional patterns of hearing loss described in the rating schedule. See 38 C.F.R. § 4.86. Therefore, the alternative rating criteria do not apply. See id. The Board has considered the Veteran’s description of his difficulties with hearing. He asserts that his everyday life has been dramatically altered due to his hearing loss. He stated that his hearing loss causes difficulty in his social life, and that communicating on the telephone and in crowds is nearly impossible. He described difficulty attending plays and comedy clubs and in dancing, as well as in performing daily chores. See VA Form 9, dated October 21, 2016. He also reported that his family complains about this hearing loss. See June 2016 VA examination report. The Board does not doubt that the Veteran’s hearing loss causes him considerable challenges. However, the criteria for evaluating hearing loss for VA compensation purposes are based on the degree of severity as determined by audiometric testing results and speech recognition scores. The Veteran asserted that he believes that each individual has his/her own unique disability rating “beyond the hearing loss tables.” See VA Form 9, dated October 21, 2016. Referral of this case for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111, 114 (2008). The functional effects of the Veteran's difficulty hearing and understanding speech in various contexts, as described above, are contemplated by the rating schedule. See Doucette v. Shulkin, 28 Vet. App. 366, 369, 371 (2017). Regardless of whether restriction in social choices may be considered a symptom of hearing loss not contemplated by the rating schedule, related factors such as marked interference with employment are not shown. In the alternative, restriction in social choice is not a sign or symptom, but rather an external circumstance or challenge that is beyond the province of VA disability compensation. Accordingly, the Board will not refer this case for extraschedular consideration. See 38 C.F.R. § 3.321(b). In sum, the Veteran’s bilateral hearing loss has not met or more nearly approximated the criteria for a compensable rating at any point during the pendency of this claim. Accordingly, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Haas, Associate Counsel