Citation Nr: 18157723 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 14-25 052 DATE: December 13, 2018 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran died in April 2017; the appellant is the Veteran’s surviving spouse, who was substituted as the claimant to continue the Veteran’s pending claim to completion. 2. Audiological testing conducted in December 2009 is not adequate for rating purposes, as speech recognition scores were determined using the NU-6 word list. 3. Audiological testing conducted in February 2011 revealed hearing loss no greater than Level II hearing loss in the right ear and Level II hearing loss in the left ear. 4. Audiological testing conducted in December 2011 is not adequate for rating purposes, as the testing failed to report all required puretone thresholds and speech recognition scores were determined to be unreliable. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1955 to July 1958. He died in April 2017. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. At the time of his death, the Veteran had a pending appeal for the issue set forth on the title page. A person eligible for substitution is defined as a living person who would be eligible to receive accrued benefits due to the claimant. See 38 U.S.C. § 5121A (2014); 38 C.F.R. § 3.1010 (2017). In July 2018, the appellant was substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran’s death. On the Veteran’s June 2014 substantive appeal, he requested a hearing before a Veterans Law Judge (VLJ). A hearing was scheduled for May 2018; however, the Veteran passed away prior to the hearing. In October 2018, the appellant withdrew the hearing request. Accordingly, the request for a hearing is considered to be withdrawn and the claim will be reviewed based on the evidence of record. See 38 C.F.R. § 20.704(e) (2017) Entitlement to an initial compensable disability rating for bilateral hearing loss. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran was seeking an initial compensable disability rating for his service-connected bilateral hearing loss, which he asserted was more severe than reflected by his assigned disability rating. As the substitute claimant, the appellant continues the Veteran’s contentions. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on puretone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Reviewing the evidence of record, a December 2009 private audiological examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 40 60 65 LEFT 20 60 75 80 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 45 decibels for the right ear and 58.75 decibels for the left ear. Speech recognition testing was conducted using the NU-6 word list rather than the Maryland CNC word list, as required under 38 C.F.R. § 4.85(a). As such, the results of the December 2009 audiological examination are of limited probative value. Following his claim for service connection, the Veteran underwent a VA examination in February 2011. Both air and bone conduction studies were performed; however, the VA examiner concluded that results from the air conduction study better reflected the Veteran’s hearing loss. Puretone thresholds, in decibels, from the air conduction study were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 40 55 65 LEFT 20 50 60 70 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 43.75 decibels for the right ear and 50 decibels for the left ear. Maryland CNC testing revealed speech recognition scores of 84 percent for both the left and right ear. Applying the test results of the February 2011 VA audiometric examination to Table VI of the Rating Schedule results in a Roman numeric designation of Level II for the right ear and Level II for the left ear. 38 C.F.R. § 4.85, Table VI. Applying the Roman numeric designations to Table VII, the result is a noncompensable disability rating for the Veteran’s service-connected bilateral hearing loss. 38 C.F.R. § 4.85, Table VII, Diagnostic Code 6100. The Veteran underwent another audiological examination with VA in December 2011. Puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 65 70 LEFT 25 55 -- 80 The average of the puretone thresholds findings at 1000, 2000, 3000, and 4000 Hertz was 50 decibels for the right ear and undeterminable for the left ear, as the examination failed to capture a puretone threshold in the 3000 Hertz range. Further, Maryland CNC testing was found to be “not adequate for rating purposes.” As such, the results of the December 2011 audiological examination are of limited probative value, as the Board is unable to utilize these findings in the determination of the appropriate rating to be assigned to the Veteran’s bilateral hearing loss. See 38 C.F.R. § 4.85(a) (noting that an examination for hearing impairment for VA purposes must include a Maryland CNC controlled speech discrimination test); 38 C.F.R. § 4.85(d) (an examination for hearing impairment for VA purposes must include, among other things, puretone thresholds at 3000 Hertz). The Board notes that even if VA were to average the puretone thresholds of the December 2009 examination and the available puretone thresholds of the December 2011 examination and utilize Table VIA to determine a rating based on puretone thresholds alone, the Veteran would continue to be entitled to a noncompensable disability rating. The Board has carefully considered the lay statements of record and in no way discounts the asserted difficulties that were associated with the Veteran’s bilateral hearing loss. The statements from the Veteran and his wife are both competent and credible in regard to reporting worsening hearing acuity and functional effects. However, in essence, lay statements are of limited probative value. As laypersons, the Veteran and his wife are competent to report difficulties with hearing but are not competent to assign particular speech recognition scores or puretone decibel readings to hearing acuity problems. Of greatest probative value is the February 2011 VA examination, as it, unlike the December 2009 and December 2011 examinations, was conducted in accordance with the requirements for a hearing impairment examination for VA purposes. See 38 C.F.R. § 4.85(a). More probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. Additionally, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA’s rating schedule based on the audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. (Continued on the next page)   Accordingly, the Board finds that an initial compensable disability rating for the Veteran’s bilateral hearing loss is not warranted. The evidence preponderates against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel