Citation Nr: 20039976 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 17-50 403A DATE: June 11, 2020 ORDER Entitlement to an initial compensable rating for the period prior to October 30, 2018 for bilateral hearing loss is denied. Entitlement to a disability rating in excess of 20 percent for the period from October 30, 2018 for bilateral hearing loss is denied. FINDINGS OF FACT 1. For the period prior to October 30, 2018, the Veteran’s hearing loss has been manifested by hearing impairment corresponding to no worse than auditory acuity Level I in the right ear, and Level I in the Left ear. 2. For the period from October 30, 2018, the Veteran’s hearing loss has been manifested by hearing impairment corresponding to no worse than auditory acuity Level VI in the right ear, and Level IV in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for the period prior to October 30, 2018 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to a disability rating in excess of 20 percent for the period from October 30, 2018 for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1961 to January 1966. Increased Rating 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; 38 C.F.R. Part 4. 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. 1. Entitlement to an initial compensable rating for the period prior to October 30, 2018 for bilateral hearing loss The Veteran contends that he should be awarded an initial compensable disability rating for his service-connected bilateral hearing loss prior to October 30, 2018. Evidence relevant to the level of severity of the Veteran’s bilateral hearing loss prior to October 30, 2018 includes a July 2015 audiological examination which revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 25 60 55 65 51 LEFT 20 55 60 65 50 Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 94 percent for the right ear and 96 percent for the left ear. These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the July 2015 audiogram results warrant a noncompensable disability rating. 38 C.F.R. § 4.85. The Veteran had another audiological evaluation in September 2015, which revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 25 45 50 55 44 LEFT 15 35 50 65 41 Speech recognition testing revealed speech recognition ability of 92 percent for the right ear and 96 percent for the left ear. These audiometry test results equate to Level I in the right ear and Level I in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the September 2015 audiogram results warrant a noncompensable disability rating. 38 C.F.R. § 4.85. The Veteran has stated that his hearing loss is to the point of needing hearing devices for his ears. Additionally, the Veteran stated in July 2017 that his hearing loss had gotten worse since he initially filed his claim. The Veteran submitted a private hearing evaluation report from August 2017. The August 2017 hearing evaluation report noted that the Veteran has bilateral hearing loss. Speech discrimination using the Maryland CNC test for the right ear was noted at 92 percent and 96 percent for the left ear. Average hearing loss for the 1000 – 4000 frequencies was not clearly noted in the report. However, the Board is permitted to interpret graphical results of hearing acuity tests. These results represent an average of 55 Hz on the right, and 51 Hz on the left. This continues to result in a non-compensable hearing loss when combined with the speech discrimination scores. Additionally, VA treatment records for the period prior to October 30, 2018 note that the Veteran used hearing aids. The Board has considered the Veteran’s symptomology and functional impact. The Veteran’s complaints of hearing difficulty 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 because 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. 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. Under these circumstances, the Board finds that prior to October 30, 2018, the record has presented no basis for the assignment of an initial 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). 2. Entitlement to a disability rating in excess of 20 percent for the period from October 30, 2018 for bilateral hearing loss The Veteran contends that he should be awarded a disability rating in excess of 20 percent for his service-connected bilateral hearing loss for the period from October 30, 2018. A November 2018 hearing loss Disability Benefits Questionnaire revealed the following puretone thresholds, in decibels: HERTZ 1000 2000 3000 4000 Average RIGHT 50 60 65 70 61 LEFT 35 60 65 70 58 Speech recognition testing using the Maryland CNC Word List revealed speech recognition ability of 60 percent for the right ear and 80 percent for the left ear. Concerning the functional impairment caused by his hearing loss, the Veteran reported that he does not hear words as well, and that he hears the sound, but does not understand the words. The Veteran also stated that the television is too loud without his hearing aids. These audiometry test results equate to Level VI in the right ear and Level IV in the left ear using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, the November 2018 audiogram results do not warrant a disability rating in excess of 20 percent. 38 C.F.R. § 4.85. The Board has considered the Veteran’s symptomology and functional impact. The Veteran’s complaints of hearing difficulty 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. As above, the Board in no way discounts the difficulties that the Veteran experiences because of his hearing loss. The Veteran is competent to testify to facts or circumstances that can be observed and described by a lay person. 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. 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. 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 described above. Thus, the Board finds that the schedular rating criteria adequately contemplate the Veteran’s symptomatology. Under these circumstances, the Board finds that for the period from October 30, 2018, the record has presented no basis for the assignment of a disability rating in excess of 20 percent 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 David M. Sebstead, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.