Citation Nr: 21003740 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-03 528 DATE: January 22, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, audiograms of record demonstrated that the Veteran’s hearing loss was manifested by at worst Level III hearing acuity in the right ear and Level I hearing acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from August 1968 to March 1970, including serving in Vietnam. This appeal was previously remanded by the Board of Veterans’ Appeals (Board) in May 2019, December 2019, and August 2020. In the August 2020 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain copies of VA audiograms performed in March 2013 and July 2016. Thereafter, the AOJ obtained and associated with the record studies dated in April 2013 and July 2016. (The Veteran attended a VA audiology consult in March 2013, and an audiogram was performed the following month. Thus, the April 2013 study corresponds to the Board’s request for March 2013 audiogram results.) In addition, the AOJ contacted the Veteran to inquire whether his hearing had worsened since his most recent VA evaluation and, if so, whether he wanted to be evaluated again. The Veteran indicated his hearing had not worsened, and declined another evaluation. In light of the above, the Board finds the AOJ has substantially complied with the August 2020 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends his bilateral hearing loss is more severe than what is reflected by his current, noncompensable rating. Evaluations of bilateral defective hearing 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 measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability for bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I (for essentially normal hearing acuity) through Level XI (for profound deafness). 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The evaluations derived from the schedule are intended to make allowance for improvement by hearing aids. 38 C.F.R. § 4.85, DC 6100. Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86. That regulation states that: (a) When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, 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. (b) When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). The instant appeal dates from the Veteran’s claim for service connection, which VA received in August 2013. The Board notes that, prior to filing his claim, an audiogram performed in April 2013 revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 35 50 50 LEFT 10 15 30 45 55 The average decibel loss was 37.5 decibels in the right ear and 36.25 decibels in the left ear. It was noted that the Veteran’s word recognition ability was “excellent” at the levels tested. The Veteran was afforded a VA Compensation and Pension (C&P) evaluation in April 2014, which revealed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 50 55 LEFT 15 15 30 45 55 The average decibel loss was 40 decibels in the right ear and 36.25 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. In his October 2014 notice of disagreement, the Veteran contested his initial noncompensable rating, arguing he was told by an examiner that his hearing loss was “severe.” He also asserted his hearing was functionally worse than what was reflected in prior evaluations because he was unable to wear his hearing aids at all times. In his January 2016 substantive appeal, the Veteran asserted his problem was with “separating and hearing two or more sounds at the same time.” For example, he explained, “[i]f music is playing and someone is speaking or singing at the same time, I only hear the music.” He further noted his hearing aids were only intermittently helpful. (Regarding the Veteran’s claims as to the efficacy of his hearing aids, the Board notes that under 38 C.F.R. § 4.85(a) VA hearing evaluations are conducted without the use of hearing aids.) The Veteran was next afforded a VA C&P evaluation in March 2016, which indicated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 70 70 LEFT 35 40 50 60 70 The average decibel loss was 57.5 decibels in the right ear and 55 decibels in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. In July 2016, the Veteran was seen for a VA audiology consult. At that time, an audiogram was performed, which indicated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 35 55 55 LEFT 20 20 35 50 50 The average decibel loss was 41.25 decibels in the right ear and 38.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 92 percent in the left ear. The Veteran was afforded a VA C&P evaluation in March 2020, which indicated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 45 60 60 LEFT 20 25 45 50 55 The average decibel loss was 46.25 decibels in the right ear and 43.75 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The Veteran was afforded another VA C&P evaluation in July 2020, which indicated puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 40 50 60 60 LEFT 25 40 45 55 65 The average decibel loss was 52.5 decibels in the right ear and 51.25 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in both ears. Applying Table VI of the rating schedule, the results of the audiograms noted above reflects that the Veteran had, at worst, Level III hearing acuity in the right ear (as measured during the March 2016 C&P evaluation) and Level I hearing acuity in the left ear. See 38 C.F.R. § 4.85, Table VI. Pursuant to Table VII, these results correspond to a noncompensable rating. See 38 C.F.R. § 4.85, Table VII. As illustrated above, the audiological examinations of record indicate findings corresponding to no higher than a noncompensable rating, under the applicable criteria. There is no competent evidence in the record that would suggest that the Veteran’s hearing loss is severe enough to warrant a higher rating. The Board has no reason to doubt the validity of the VA audiometric testing in this case. Moreover, none of the VA examinations demonstrate an exceptional pattern of hearing impairment, as the Veteran did not have puretone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz, or a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b). Additionally, there is no examiner certification that the use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc. As such, there is no basis to alternatively rate this claim under Table VIA. See 38 C.F.R. § 4.85(c). The Veteran’s subjective reports of hearing impairment, to include his reports of difficulty distinguishing between ambient noise and speech, have been considered. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, a review of his lay statements gives no indication of specific symptoms or a particular degree of impairment that would justify a compensable rating. Moreover, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. This criteria measures hearing acuity directly in a controlled laboratory environment. In this regard, as discussed above, VA audiometric examination findings in this case demonstrate no basis for any increase in disability evaluation. The Veteran has not alleged any errors were made in either of the VA studies of record that would compromise the validity of the results. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019); Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). The Board notes that, in an April 2019 Informal Hearing Presentation (IHP), the Veteran’s representative raised the issue of entitlement to an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1). Although the representative did not present any specific arguments as to why the Veteran’s hearing loss was exceptional, unusual, or otherwise deserving of an extraschedular rating, the representative noted that a hearing loss claim “could,” in some instances, include evidence of functional impairment such as vertigo or ear pain. The representative also requested that consideration “be given to the veteran’s additional service connected disabilities, and any correlation that may exist among them.” As to the representative’s contention regarding “any correlation that may exist” between the Veteran’s hearing loss and his other service-connected disabilities, the Board notes that in December 2017, VA issued a Final Rule, effective January 8, 2018, amending 38 C.F.R. § 3.321(b) and abrogating the United States Court of Appeals for the Federal Circuit’s holding in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), by eliminating extraschedular consideration on the basis of the collective impact of multiple service-connected disabilities. See Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57830 (Dec. 8, 2007). More recently, in September 2018, the United States Court of Appeals for Veterans Claims (Court) issued a panel decision holding that VA’s revision to 38 C.F.R. § 3.321(b) eliminating extraschedular consideration on the basis of the collective impact of multiple service-connected disabilities did not have an impermissible retroactive effect and applied to all cases pending before VA and the Court on the effective date of the final rule. See Thurlow v. Wilkie, 30 Vet. App. 231 (2018). Thus, the December 2017 rule applies to all applications for benefits that were pending before VA on January 8, 2018, which includes this appeal. As such, the Board may not consider the impact of other service-connected disabilities in conjunction with the Veteran’s hearing loss. The Board further finds that the Veteran’s hearing loss symptoms are fully contemplated under the rating criteria provided in DC 6100. There is no evidence the Veteran has suffered dizziness, vertigo, ear pain, recurrent tinnitus, or other symptoms or functional impairment as a result of his service-connected hearing loss. Indeed, the Veteran denied any such symptoms in an interview with a VA medical professional, as recorded in a March 2020 opinion. The Board notes that the proposed rule for the current version of DC 6100 explains that the criteria of DC 6100 were revised in 1987 with the goal of recognizing the impact of hearing loss in higher frequencies, and to provide a more accurate picture of true hearing impairment. See 52 Fed. Reg. 17607 (May 11, 1987). As a result, VA changed its testing methods and, in conjunction with the Department of Medicine and Surgery, developed amendments to 38 C.F.R. § 4.85, 4.86(a), 4.87(a), and Tables VI and VII. In particular, puretone averaging was to be accomplished using tone bursts at 1000, 2000, 3000 and 4000 Hertz, and speech recognition was to be measured using the Maryland CNC word lists which contained words with sounds in the 3000 and 4000 Hertz range. Overall, the new schedule was intended to evaluate hearing loss based on a combination of puretone averages and speech discrimination, which was thought to provide for a more accurate representation of actual hearing impairment by recognizing that individuals with slight to moderate decibel loss as determined by puretone averaging may have significant impairment of speech and vice versa. Additionally, the rating schedule was revised to accommodate language difficulties and other factors which produced inconsistent speech audiometry scores, and to recognize exceptional patterns of hearing impairment. Notably, VA determined that “Table VII was developed during months of consultations with our Department of Medicine and represents the best judgment of experts in this field.” The Board defers to VA’s expertise in determining the most appropriate measure of hearing loss impairment in terms of functioning under the ordinary conditions of life, including employment. 38 U.S.C. § 1155. As discussed above, the Veteran has not forth clear evidence that the VA examiners did not properly discharge their examination duties, nor has he demonstrated specific symptoms or functional impairment due to hearing loss that would justify consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the record). (Continued on the next page)   In sum, the application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports of record demonstrate that the appropriate rating for the Veteran’s bilateral hearing loss is noncompensable, throughout the appeal period. The Veteran has not met the criteria for a compensable rating during any discrete period involved in this appeal. His claim must therefore be denied. The Board is grateful for the Veteran’s honorable service. This decision is in no way meant to detract from that service. The Board is bound by the law, however, and for the reasons discussed above, the benefits he seeks cannot be granted at this time. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.