Citation Nr: 19106987 Decision Date: 02/01/19 Archive Date: 01/29/19 DOCKET NO. 17-57 320 DATE: February 1, 2019 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s hearing loss has been manifested by hearing impairment corresponding to no worse than auditory acuity Level II in the right ear, and Level IV in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marines from July 1960 to July 1964. The Veteran contends that he should be awarded a 10 percent rating for his service-connected bilateral hearing loss, in particular because his service-connected tinnitus is rated at 10 percent and he wears hearing aids. Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assigned evaluation for hearing loss is determined by mechanically applying the rating criteria to certified test results under DC 6100 for hearing loss. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under DC 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000; 2000; 3000; and 4000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, DC 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. The only hearing test of record was from a VA audiological evaluation in February 2017. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 25 70 75 48.75 LEFT 25 45 75 80 56.25 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 82 percent in the left ear. Regarding functional impact, the Veteran reported difficulty hearing the clarity of general conversation, especially with his wife, and listening to the television at loud volume. The results of the February 2017 audiogram show no worse than Level II acuity in the right ear and no worse than level IV in the left ear. The Board finds the VA examiners’ opinions highly probative to the question at hand. The examiners were audiologists and possessed the necessary education, training, and expertise to provide the requested opinions. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiners conducted the audiological evaluation in compliance with the VA Handbook of Standard Procedures and Best Practices for Audiology Compensation and Pension Examinations. The Board has considered the Veteran’s symptomology and functional impact. The Veteran’s complaints of hearing difficulty, even with the use of hearing aids, have been considered under the numerical criteria set forth in the rating schedule. In short, the rating criteria reasonably describe the Veteran’s disability levels and symptomatology. The Board in no way discounts the difficulties that the Veteran experiences as a result of his hearing loss. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). However, it must be emphasized, as previously noted, that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent audiological evaluations 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 Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s use of an assistive device to hear is considered part and parcel of his disability. The Veteran has made no specific arguments as to why such assistive devices take the disability outside the realm of the rating schedule. Furthermore, the regulations that designate decibel loss and speech discrimination for each level of hearing impairment in Table VI were chosen in relation to clinical findings of the impairment experienced by veterans with certain degrees and types of hearing disability. In support of this finding, the Board points to the regulatory history of 38 C.F.R. §§ 4.85 and 4.86. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25206 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran’s Health Administration (VHA) in developing criteria that contemplated situations in which a veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds does not always reflect the extent of impairment experienced in the ordinary environment. Accordingly, a different table of decibel threshold requirements was established (i.e., Table VIA), with the intended effect being to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17295 (April 12, 1994). Those certain patterns of impairment are specifically laid out in the schedule, and this Veteran’s hearing thresholds do not qualify. Accordingly, the Board finds that functional impairment due to hearing loss that is compounded by background or environmental noise, or otherwise requires assistive devices to overcome, is a disability picture that is considered in the current schedular rating criteria. Thus, the Board finds that the schedular rating criteria adequately contemplate the Veteran’s symptomatology, and that a remand to the RO for referral of this issue to the VA Central Office for consideration of an extraschedular evaluation is not warranted. Under these circumstances, the Board finds that throughout the appeal period, the record has presented no basis for the assignment of a compensable disability rating for the Veteran’s service-connected bilateral hearing loss. Accordingly, the claim is denied. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). BETHANY L. BUCK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. M. Hitchcock