Citation Nr: 21000336 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-58 645A DATE: January 5, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran demonstrated, at worst, level II hearing acuity in his right ear and level I hearing acuity in his left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.85, diagnostic code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1986 to April 1990. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota which, inter alia, continued its denial of service connection for hearing loss. In October 2015, the Veteran filed his notice of disagreement with, among other things, the denial of service connection for bilateral hearing loss. In October 2016, the RO granted service connection for, among other things, bilateral hearing loss evaluating it as noncompensable. In December 2016, the Veteran filed a notice of disagreement with, among other things, the noncompensable rating assigned for bilateral hearing loss, and in September 2017 was issued a statement of the case and perfected his appeal to the Board. On May 14, 2019, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In October 2019, the Board, among other things, remanded the Veteran’s claim for bilateral hearing loss for a new VA audiological examination finding that the Veteran provided good cause for failing to attend his previously scheduled VA audiological examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). For the reasons indicated in the discussion below, the audiological examination that the Board instructed the agency of original jurisdiction (AOJ) to obtain was in fact obtained and is adequate to decide the claim on appeal. Thus, the AOJ complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Bilateral hearing loss The Veteran contends that his bilateral hearing loss has worsened and that he has to ask people to repeat themselves so he can understand them, and needs to raise the volume on the television to hear it. He indicated on his Form 9 that he has a difficult time hearing a normal conversation, and that his phone and television volumes are set to the maximum levels. The Veteran’s bilateral hearing loss is currently rated noncompensable under DC 6100. Ratings for hearing loss disability 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, in decibels (dB) as measured by pure tone audiometric tests in frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85, DC 6100. An examination for hearing impairment for VA purposes must include a controlled speech discrimination test (Maryland CNC). Id. 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. Id. Table VII is then applied to arrive at a rating based upon the respective Roman numeral designations for each ear. Id. Exceptional patterns of hearing impairment allow for assignment of the Roman numeral designation through the use of Table VI or an alternate table, Table VIA, whichever is more beneficial to the Veteran. 38 C.F.R. § 4.86. This applies to two patterns. In both patterns each ear will be evaluated separately. Id. The first pattern is where the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dB or more. 38 C.F.R. § 4.86(a). The second pattern is where the pure tone threshold is 30 decibels or less at 1000 Hz and 70 dB or more at 2000 Hz. Id. If the second pattern exists, the Roman numeral will be elevated to the next higher numeral. Id. As the evidence described below shows, neither of the patterns are present in this case. In describing the evidence, the Board refers to the frequencies of 1000 Hz, 2000 Hz, 3000 Hz, and 4000 Hz, as the frequencies of interest. An August 2016 audiological disability benefits questionnaire (DBQ) reflected pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 30 85 55 LEFT 30 30 40 60 45 Average pure tone thresholds in the right ear were 50 dB, and 44 dB in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear, and of 94 percent in the left ear. The audiologist noted on the DBQ that the Veteran reported having a hard time hearing normal sounds which impacted the ordinary conditions of daily life including the ability to work. On the Veteran’s audiological examination in August 2020, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 45 75 65 LEFT 35 35 50 65 55 Average pure tone thresholds in the right ear were 56 dB, and 51 dB in the left ear. Speech audiometry revealed speech recognition ability of 86 percent in the right ear, and of 92 percent in the left ear. The audiologist noted that the Veteran’s bilateral hearing loss required that he turn up the volume on the television, and the Veteran reported that his bilateral hearing loss caused him to misunderstand what people said. He also reported having to wear a headset to be able to hear instructions. The Board notes that the examination noted above describes the effects of the Veteran’s hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). With application of the above test results to 38 C.F.R. § 4.85, Table VI, Table VII, the Veteran’s right ear hearing loss, at its worst, is assigned a numeric designation of II, and the left ear hearing loss, at its worst, is assigned a numeric designation of I. These test scores do not show that the Veteran meets the criteria for a compensable rating for his bilateral hearing loss. Therefore, the Board finds that the claim for a higher evaluation for his service-connected bilateral hearing loss is denied under Table VII. See 38 C.F.R. § 4.85, DC 6100. As both the August 2016 DBQ and August 2020 audiological examination resulted in a noncompensable rating for bilateral hearing loss, a compensable rating is not warranted for bilateral hearing loss. The fact that the Veteran contends that his hearing loss disability warrants a compensable rating has been considered. However, the Board is bound in its decisions by the VA regulations governing the rating of hearing loss. 38 U.S.C. § 7104 (c); 38 C.F.R. §§ 19.5, 20.101(a). Rating hearing loss requires the use of the Maryland CNC speech discrimination test and the pure tone threshold average determined by an audiometry test. Application of the schedule to the facts of this case shows that a compensable rating is not warranted. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 371-72 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). As the preponderance of the evidence is against the claim for an initial compensable rating for bilateral hearing loss, the benefit of the doubt doctrine is not for application and the Veteran’s appeal must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.