Citation Nr: 18157671 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 13-30 224 DATE: December 13, 2018 ORDER Entitlement to an initial compensable rating for service-connected bilateral hearing loss is denied. FINDING OF FACT Audiometric testing establishes that the Veteran has had, at worse, Level II hearing impairment in the right ear and Level III hearing impairment in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met or approximated. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.385, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. In November 2017, the Board remanded the case for further development. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s service-connected bilateral hearing loss has been assigned an initial noncompensable rating. The Veteran seeks an initial compensable rating for his service-connected hearing loss. Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. In evaluating hearing loss impairment, disability ratings are derived by 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 evaluations range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests, in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). Under Diagnostic (DC) Code 6100, Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect. 38 C.F.R. § 4.85(b). 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 represent 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 Veteran was afforded a VA audiological examination in December 2011. The Veteran’s pure tone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 25 60 60 55 LEFT 30 60 60 60 Speech audiometry, using the Maryland CNC test, revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. The examination resulted in puretone threshold averages of 50 decibels for the right ear and 52.5 decibels for the left ear. Applying the criteria for evaluating hearing loss to the findings results in a designation of Level I in the right ear and Level I in the left ear. Using those Roman numeral designations and Table VII to obtain a percentage evaluation results in a noncompensable rating. The Veteran underwent a VA audiological evaluation in November 2017. The examination revealed audiometry results as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 45 65 65 70 LEFT 50 70 70 65 Speech recognition testing using the Maryland CNC test revealed speech recognition ability of 96 percent in the right ear and 88 percent in the left ear. The average puretone threshold was 61.25 decibels for the right ear and 63.75 decibels for the left ear. Applying the above results to the applicable legal criteria, the Veteran’s hearing impairment levels correspond to Level II in the right ear and Level III in the left ear under Table VI. A Level II for the right ear, combined with a Level III for the left ear, also results in a noncompensable rating. In short, the results of audiological testing indicate, at worse, there is Level II hearing impairment in the right ear and Level III hearing impairment in the left ear, which does not warrant a compensable rating. Moreover, none of the audiological findings qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the Veteran at no point during the appellate period had puretone thresholds of 55 decibels or more at each of the four specified frequencies or a puretone threshold of 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear. The Board has considered the Veteran’s statements regarding the severity of his hearing loss throughout the pendency of this appeal. The Veteran is competent to report matters of which he has personal knowledge, such as difficulty hearing. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). However, while the Veteran is competent to describe the severity of his hearing loss, he is not competent to provide specific audiometric levels, as he has not been shown to possess the requisite training or other credentials needed to render such an opinion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, his lay assertions are not considered more persuasive than the objective clinical findings which, as indicated above, do not support assignment of a compensable rating for the Veteran’s bilateral hearing loss at any point pertinent to this appeal. The Veteran testified that he has VA issued hearing aids. The use or issuance of hearing aids is not conclusive evidence as to whether a Veteran’s hearing loss rises to the level of a compensable rating for VA purposes. Hearing loss is rated under 38 C.F.R. §§ 4.85, 4.86, DC 6100. Under DC 6100, hearing impairment evaluations are derived by a mechanical application of the ratings schedule to the numeric designations assigned resulting from audiometric evaluations. See Lendenmann, 3 Vet. App. 345. The Board acknowledges the Veteran’s submitted academic work, “Noise and Military Service: Implications for Hearing Loss and Tinnitus.” A medical article “can provide important support when combined with an opinion of a medical professional” if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality.” Sacks v. West, 11 Vet. App. 314 (1998); Wallin v. West, 11 Vet. App. 509 (1998); Mattern v. West, 12 Vet. App. 222 (1999). The Board finds that the submitted academic work has little probative value to the question currently before it. The RO granted service connection for the Veteran’s bilateral hearing loss. Therefore, the relevant question before the Board is what rating is warranted based on the audiometric findings relevant to this appeal period. The Board acknowledges, as it referenced in the November 2017 remand, that VA treatment records reference re-evaluation in 2015, and well as in 2014. The Board remanded directed that relevant outstanding records be obtained. Unfortunately, full audiometric findings from these evaluations are still not of record. The findings in the VA treatment records of file, however, do include word test results. These documents do not provide a basis for finding that these evaluations completed in the period between the complete VA examinations of file contain results different from these complete VA examinations. The Board finds that remanding again to again seek relevant records would result in additional delay without benefit flowing to the Veteran. In this regard, the audiologist wrote in the December 2015 consult that “[c]ompared to previous audiometrics, today’s finding are essentially the same as those obtained both in 2014 and 2011.” Complete and thorough examinations from 2011 and 2017 are of file and do not provide a basis for a compensable rating, and there is no indication that any outstanding relevant evidence would lead to a different determination based on the evidence that these finding are “essentially the same.” The preponderance of the evidence is against finding an initial compensable rating for the Veteran’s hearing loss at any point during the appellate period. The December 2011 and November 2017 VA examination audiometric results are probative and valid for rating purposes. The results include both puretone thresholds and speech discrimination testing using the Maryland CNC test as well as reflect the severity of the Veteran’s bilateral hearing loss at the time. The Board finds that the evidence is not in equipoise, so the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Veteran’s claim for an initial compensable rating for bilateral hearing loss is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Robinson, Associate Counsel