Citation Nr: 21004229 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-06 096 DATE: January 26, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss prior to March 13, 2018, and in excess of 30 percent thereafter is denied. INTRODUCTION The Veteran served on active duty from September 1965 to January 1966. In May 2018, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. When this case was last before the Board in July 2018 and May 2020, the above-noted issue was remanded for additional development. The case has now been returned to the Board for further appellate review. FINDING OF FACT Prior to March 13, 2018 the competent medical evidence shows the Veteran’s hearing impairment was no worse than Level II in the right ear and Level VII in the left ear, and since that time the competent medical evidence shows the Veteran’s hearing impairment was no worse than Level IV in the right ear and Level XI in the left ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for bilateral hearing loss prior to March 13, 2018, and in excess of 30 percent thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has been afforded appropriate VA examinations to address the severity of his service-connected bilateral hearing loss in March 2012 and March 2018. The Veteran has not asserted, and the evidence of record does not show, that his disability has increased significantly in severity since his most recent examination. The Veteran was also afforded a hearing before the Board, and a transcript of that proceeding is of record. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran’s claim. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2020); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). Disability ratings for hearing loss are derived from mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court held the ratings criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech, including in an everyday work environment, as these are precisely the effects that VA’s audiometric test are designed to measure. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the row and column intersect. 38 C.F.R. § 4.85 (b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on puretone threshold average. Table VIa is used when the examiner certifies that the use of the speech discrimination test is not appropriate due to language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86. 38 C.F.R. § 4.85 (c). “Puretone threshold average” as used in Tables VI and VIa is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz and divided by four. This average is used in all cases (including those of § 4.86) to determine a Roman numeral designation from Tables VI and VIa. 38 C.F.R. § 4.85 (d). Table VII, “Percentage Evaluations of Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment in each ear. The horizontal rows represent the ear having better hearing and the vertical columns represent the ear having the poorer hearing. The percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85 (e). Provisions for evaluating exceptional patterns of hearing impairment are as follows: (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 thresholds are 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; the numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Factual Background and Analysis By way of background, the Veteran initiated a claim for an increased rating for his service-connected bilateral hearing loss in December 2011. In the August 2012 rating decision on appeal, the RO assigned a 10 percent disability rating. Thereafter, in an April 2018 rating decision, the RO assigned a 30 percent disability rating effective from the date of the Veteran’s March 13, 2018 VA examination, which established a worsening of the Veteran’s hearing loss in accordance with 38 C.F.R. § 4.85 (a). In response to his claim, the Veteran was afforded a VA audiological examination in March 2012; the examiner reviewed the evidence of record and noted the Veteran’s history. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 45 75 70 LEFT 45 35 65 105 100 Speech recognition was 88 percent in the right ear and 60 percent in the left ear. Applying the values above to Table VI results in a Level II Roman numeral designation for the right ear and Level VII Roman numeral designation for the left ear. Application of a Level II and Level VII designation to Table VII results in a 10 percent rating. The readings reported in this evaluation do not meet the requirements for evaluation as an exceptional pattern of impairment. The Veteran was afforded a second VA audiological examination in March 2018; the examiner also reviewed the evidence of record and noted the Veteran’s history. On examination, puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 55 85 80 LEFT 45 50 95 105 105 The Board observes the March 2018 VA examiner indicated she was unable to test the Veteran’s left ear puretone threshold at 3000 and 4000 Hertz; however, in an October 2019 addendum medical opinion an Audiologist indicated the highest values of 105 should be utilized in that situation. The Board has utilized these values to assess the Veteran’s hearing loss, as this allows for the highest potential rating assignable. During the March 2018 examination speech recognition was 80 percent in the right ear and 32 percent in the left ear. Applying the values above to Table VI results in a Level IV Roman numeral designation for the right ear and Level XI Roman numeral designation for the left ear. Application of a Level IV and Level XI designation to Table VII results in a 30 percent rating. The readings reported in this evaluation also do not meet the requirements for evaluation as an exceptional pattern of impairment. The Court 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). In accordance with this decision, the March 2012 and March 2018 examiners stated the Veteran has more difficulty hearing in one ear than the other, and also reported difficulty in many situations which is frustrating to him as he often asks people to repeat themselves. The Veteran has also reported difficulty hearing with background noise. The Board acknowledges the Veteran has provided several additional private audiological evaluations from Hear USA, A+ Audiology and Hearing Aid Services, and Ear, Nose and Throat Institute at Renaissance; however, these examination reports do not indicate testing was performed in accordance with 38 C.F.R. § 4.85 (a). In particular, the evaluation provided by A+ Audiology and Hearing Aid Services wholly failed to provide speech recognition assessments. The evaluations provided by Hear USA and Ear, Nose and Throat Institute at Renaissance failed to state whether speech recognition assessments were performed using controlled speech discrimination test (Maryland CNC). Further, the Board requested and obtained an extraschedular advisory opinion from the Director of Compensation Service in November 2020. In sum, the Director noted the hearing loss rating schedule specifically accounts for the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment and are precisely the effects that audiometric testing is designed to measure. The Veteran has not asserted he experiences functional impairments not contemplated by the hearing loss rating schedule. Therefore, the Director of Compensation Service found the record did not provide for an unusual or exceptional disability pattern that would render application of the regular rating criteria as impractical. The Board agrees. On review of the file, it is evident the schedular criteria for a disability rating in excess of 10 percent under Diagnostic Code 6100 prior to March 13, 2018, and in excess of 30 percent thereafter are not met. Although the audiological evaluations clearly show the Veteran has hearing loss, the hearing loss did not meet the level for a disability evaluation in excess of 10 percent prior to March 13, 2018, or in excess of 30 percent since that time. Thus, a higher rating for bilateral hearing loss is not warranted. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.