Citation Nr: 18159059 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-21 698 DATE: December 18, 2018 ORDER An initial compensable rating for bilateral hearing loss prior to March 23, 2017, and an initial rating in excess of 10 percent thereafter, is denied. FINDING OF FACTS 1. Prior to March 23, 2017, the Veteran had, at worst, Level III hearing acuity in the right ear and Level I in the left ear. 2. From March 23, 2017, the Veteran had an exceptional pattern of hearing loss in the right ear only, which was manifested by Level VII hearing acuity in the right ear and Level II hearing acuity in the left ear. CONCLUSIONS OF LAW 1. Prior to March 23, 2017, the criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100. 2. From March 23, 2017, the criteria for a rating in excess of 10 percent have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1958 to October 1960. The May 2015 rating decision on appeal granted service connection for bilateral hearing loss and assigned a 0 percent (noncompensable) rating. In a March 2017 rating decision, the RO increased the Veteran’s hearing loss rating to 10 percent. As this does not represent a total grant of the benefits sought on appeal, the claim for an increase rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran indicated in his June 2015 notice of disagreement that he seeks a 20 percent rating for his bilateral hearing loss. Later, in his substantive appeal, he asked for $10,000.00 as compensation for his hearing loss. The Veteran is service-connected for bilateral hearing loss under Diagnostic Code 6100 with a noncompensable rating prior to March 23, 2017 and a 10 percent rating thereafter. 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 audiometric tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 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. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. 38 C.F.R. § 4.85, Diagnostic Code 6100. Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 decibels (dB) or more, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. Further, when the average pure tone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, the rating specialist will determine the Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher level. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Pertinent case law provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Lendenmann v. Principi, 3 Vet. App. 345 (1992). Prior to March 23, 2017 After review of the evidence from this time period, the Board finds that there is no basis to support a compensable rating for the Veteran’s service-connected bilateral hearing loss prior to March 23, 2017. During an October 2013 private audiological consult, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 55 70 80 62.5 LEFT 35 45 55 60 48.75 Speech audiometry was conducted, but there is no indication that the Maryland CNC Test was used. During the March 2015 VA audiological examination, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 65 75 85 67.5 LEFT 55 60 65 65 55 Speech audiometry, using the Maryland CNC Test, revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. The above audiometric results do not demonstrate an exceptional pattern of hearing loss. See 38 C.F.R. § 4.86. Moreover, since the private audiology consult did not indicate that the Maryland CNC Test was used, the Board will not consider these results in its analysis. VA regulations require that an examination for hearing impairment for VA purposes “include a controlled speech discrimination test (Maryland CNC),” and thus this private test cannot be used for rating purposes. See 38 C.F.R. § 4.85(a). Therefore, applying the audiometric results from the March 2015 VA audiological examination to Table VII, the Veteran has Level III hearing acuity in the right ear and Level I in the left ear, resulting in a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. From March 23, 2017 After review of the evidence from this time period, the Board finds that from March 23, 2017 there is an exceptional pattern of hearing loss in the right ear only. In this instance, application of Table VIa provides a higher numeral for rating the Veteran’s service-connected bilateral hearing loss, however, it does not support assignment of a rating in excess of 10 percent. During the March 2017 VA audiological examination, pure tone thresholds, in decibels, were reported as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 55 75 90 95 78.75 LEFT 45 65 65 65 60 Speech audiometry, using the Maryland CNC Test, revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. The Board observes that based on the VA audiology examination, the pure tone threshold at each of the four specified frequencies for the right ear were 55 dB or more and thus there is an exceptional pattern of hearing impairment in the right ear only. VA regulations instruct that 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 will be evaluated separately. 38 C.F.R. § 4.86(a). Under the normally applied Table VI, the audiometric findings of the March 2017 VA audiology examination equate to Level II hearing acuity in the right ear and Level II hearing acuity in the left ear. When those values are applied to Table VII, they result in a noncompensable rating. Under Table VIa for an exceptional pattern of hearing impairment in the right ear only, the audiometric findings at the March 2017 VA audiology examination equate to Level VII hearing acuity in the right ear and Level I hearing acuity in the left ear. When those values are applied to Table VII, they result in a 10 percent rating. Thus, the exceptional pattern of hearing impairment in the right ear provides for a higher rating in this instance, but does not support a rating in excess of 10 percent at any time during the appeal. 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. To the extent that the Veteran contends that his hearing loss is more severe than that shown on examination, the Board observes that the Veteran, while competent to report symptoms such as difficulty hearing, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating under VA’s tables for rating hearing loss disabilities. That type of opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331(Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). The Board further notes the United States Court of Appeals for Veterans Claims has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Here, the March 2015 VA examiner reported that the Veteran had difficulty hearing people and the TV, and the March 2017 VA examiner reported that the Veteran complained that he even had trouble hearing with his hearing aids. Additionally, in a July 2015 Statement in Support of Claim, the Veteran reported difficulty hearing at meetings. Even after considering such contentions as to the effects of the disability on his daily life and work, the Board finds that the criteria for a higher rating are not met. See Lendenmann, supra. The Rating Schedule contemplates hearing impairment under the ordinary conditions of daily life. 38 C.F.R. § 4.10. While the Board is sympathetic to the Veteran’s contention that he has difficulty hearing, including while using hearing aids, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing cannot be the basis for a higher rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment, and the functional impact he describes is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, the preponderance of the evidence is against the assignment of a compensable rating prior to March 23, 2017, and a rating in excess of 10 percent thereafter. As such, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel