Citation Nr: 21004913 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-21 014 DATE: January 28, 2021 ORDER Entitlement to an initial compensable rating prior to December 10, 2018, for bilateral hearing loss, is denied. Entitlement to an initial rating in excess of 10 percent from December 10, 2018, for bilateral hearing loss, is denied. FINDINGS OF FACT 1. For the appeal period prior to December 10, 2018, the probative evidence of record does not show that the Veteran’s hearing acuity was higher than Level I in both his right and left ears. 2. From December 10, 2018, the probative evidence of record does not show that the Veteran’s hearing acuity was higher than Level V in his right ear and Level IV in his left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating prior to December 10, 2018, for bilateral hearing loss, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to an initial rating in excess of 10 percent from December 10, 2018, for bilateral hearing loss, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1971 to July 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In August 2018, the Board remanded the appeal to the RO for further development. Thereafter, in a May 2020 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 10 percent disability rating for the Veteran’s bilateral hearing loss from December 10, 2018, the date of a VA hearing loss and tinnitus examination. The grant of an increased rating during an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. The Board notes that in August 2020, the Board remanded the matters to the RO to obtain a VA examination. In October 2020, the Veteran advised VA that he did not want to undergo another VA hearing loss examination and, instead, requested that his claims be decided upon the evidence of record. See October 2020 Report of General Information. The Board notes that when a claimant, without "good cause," fails to report for a scheduled examination or reexamination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655. VA's duty to assist is also not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Swann v. Brown, 5 Vet. App. 229, 233 (1993). As such, the Board will decide these matters based on the evidence of record and finds that, under these circumstances, the AOJ substantially complied with the Board's August 2020 remand directives. Entitlement to an initial compensable rating prior to December 10, 2018, and an initial rating in excess of 10 percent thereafter, for bilateral hearing loss The Veteran contends that he is entitled to initial increased ratings for his service-connected bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 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. The rating schedule establishes 11 auditory hearing acuity levels based upon average puretone thresholds and speech discrimination. See 38 C.F.R. § 4.85. “Puretone threshold average” as used in Tables VI and VI (a) 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 38 C.F.R. § 4.86) to determine a Roman numeral designation from Tables VI and VI(a). 38 C.F.R. § 4.85(d). 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 VI (a), “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 VI (a) 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 38 C.F.R. § 4.86. 38 C.F.R. § 4.85(c). 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 the percentage evaluation is located at the point where the row and the column intersect. 38 C.F.R. § 4.85(e). Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with 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).   Turning to the evidence of record, the Veteran was first afforded a VA examination in January 2014. He reported difficulty hearing average conversational speech particularly with background noise or with his grandchildren. The Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Right 40 30 60 75 Left 35 25 50 75 The average puretone thresholds at these frequencies were 51 for the right ear and 46 for the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 100 percent in the left ear. The audiologist found that the Veteran’s test results were valid for VA rating purposes and that the use of speech discrimination scores was appropriate for the Veteran. The Board also notes that this VA examination does not reflect the Veteran had an exceptional pattern of hearing loss for rating purposes. Based on these results, Table VI shows that the Veteran had a Level I hearing acuity in the right ear and a Level I hearing acuity in the left ear. Under Table VII, such hearing acuity warrants a 0 percent. In July 2015, the Veteran underwent VA audiology testing for treatment purposes. The VA audiologist ordered hearing aids for the Veteran following his evaluation and noted that the Veteran’s hearing loss would negatively impact communication in all settings. His puretone thresholds, in decibles, were as follows: HERTZ 1000 2000 3000 4000 Right 55 60 70 85 Left 50 55 70 85 The average puretone thresholds at these frequencies were 68 in the right ear and 65 in the left ear. The Board notes that the audiometric findings demonstrate an exceptional pattern of hearing loss in the right ear such that Table VIA is for application. Using Table VIA, there is Level V hearing loss in the right ear. However, an exceptional pattern of hearing loss is not demonstrated in the Veteran’s left ear and, as such, the left ear cannot be rated based on these findings because the VA audiologist did not use the Maryland CNC test to determine speech recognition ability. In this regard, the audiologist tested speech recognition under the CIDW-22 test instead of the Maryland CNC test, which is required for VA compensation purposes. See 38 C.F.R. § 4.85(a) (“An examination for hearing impairment for VA purposes... must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test”). As the VA audiology test was not conducted in accordance with the regulations, these results cannot be used for rating purposes and the examination is not probative in determining the Veteran’s level of disability. Even accepting that the July 2015 audiometric results show a hearing acuity at Level V under Table VIA for the right ear, and applying the Veteran’s previously documented Level I hearing acuity in his left ear from the January 2014 VA examination, which used the Maryland CNC testing, under Table VII, such hearing acuity would still warrant a 0 percent rating. Thereafter, at the April 2018 Board hearing, the Veteran testified that his hearing loss had worsened since his 2015 audiology test and that his quality of life was impacted by his disability, including difficulty hearing words with any background noise. See April 2018 Board hearing transcript, pp. 8-9. He was afforded another VA examination on December 10, 2018. He reported that he could not understand conversational level speech and asked for repetition. He   also reported that he avoided social situations, had trouble with the television and telephone, and that his spouse was upset. The Veteran’s puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Right 50 50 75 80 Left 40 50 55 80 The average puretone thresholds at these frequencies were 64 in the right ear and 56 in the left ear. Speech audiometry revealed speech recognition ability of 70 percent in the right ear and 80 percent in the left ear. The audiologist found that the Veteran’s test results were valid for VA rating purposes and that the use of speech discrimination scores was appropriate for the Veteran. The audiologist also found that the Veteran’s hearing loss had worsened since his last VA examination. The Board further notes that these VA examination results do not reflect the Veteran had an exceptional pattern of hearing loss for rating purposes. Based on these results, Table VI shows that the Veteran had a Level V hearing acuity in the right ear and a Level IV hearing acuity in the left ear. Under Table VII, such hearing acuity warrants a 10 percent rating. Based on this examination, the RO awarded a 10 percent rating for the Veteran’s bilateral hearing loss from December 10, 2018, the date of the examination. In December 2019, the Veteran last underwent VA audiology testing for treatment purposes. He reported that he perceived some progression in hearing loss since his last VA examination but denied recent medical issues with his ears. Hearing loss was noted to negatively impact communication in all settings. His puretone thresholds, in decibles, as recorded by the August 2020 VA audiologist for this date, were as follows:   HERTZ 1000 2000 3000 4000 Right 60 60 75 80 Left 50 60 55 80 The average puretone thresholds at these frequencies were 69 in the right ear and 61 in the left ear. The August 2020 VA audiologist confirmed that speech audiometry revealed speech recognition ability of 76 percent in both the left and right ears under the CIDW-22 test. As the December 2019 VA audiologist used CIDW-22 testing for speech discrimination instead of the Maryland CNC test, the audiology results are not adequate for VA rating purposes. The Board acknowledges that an exceptional pattern of hearing loss is demonstrated in the right ear such that Table VIA is for application, which does not require speech discrimination scores. Table VIA shows that the Veteran had a Level V hearing acuity in the right ear. Even if Table VIA were for application for the Veteran’s left ear, despite the fact that the audiometric data does not show an exceptional pattern of hearing loss, his hearing acuity would remain at Level IV, which under Table VII would still warrant a 10 percent rating. An addendum VA opinion was also obtained in August 2020. The VA audiologist addressed the Veteran’s report that his bilateral hearing loss disability and tinnitus affected his sleep patterns and found that it was unlikely that his bilateral hearing loss affected his sleep patterns, but noted that tinnitus is known to affect an individual’s ability to get to sleep and stay asleep. Additionally, the VA audiologist addressed the Veteran’s lay statements and Board testimony where the Veteran detailed the difficulties that he experienced with hearing loss, including that he avoided socializing with others and had to constantly ask people to repeat themselves. The VA audiologist found that based on the severity of the Veteran’s hearing loss, he would have the most difficulty understanding women and children and that his hearing loss made it difficult for him to hear the softer/finer sounds of speech such as the ‘s’, ‘f’, ‘th’, and ‘h’ sounds. The audiologist further found that the severity of the Veteran’s hearing loss would require him to turn the volume up on the television to levels that would be uncomfortable for someone with better hearing. She also noted that because of the difficulties posed by hearing loss, people with hearing loss will often isolate and avoid social situations but that these issues are true of all individuals with hearing loss and are not unique to the Veteran. Finally, in October 2020, VA contacted the Veteran to identify any disabilities related to his bilateral hearing loss. See October 2020 Report of General Information. The Veteran reported that he did not have any disabilities related to his bilateral hearing loss and did not want to undergo another VA examination. In light of the foregoing, the Board finds that an initial compensable rating prior to December 10, 2018, and an initial rating in excess of 10 percent, thereafter, is not warranted. As shown above, the January 2014 VA examination resulted in audiometric findings that do not warrant a compensable disability rating while the December 2018 VA examination resulted in audiometric findings showing a 10 percent rating, but no higher. The Board finds that these VA examinations carry more probative weight than the July 2015 and December 2019 audiological tests for treatment purposes because the audiological tests did not use the Maryland CNC speech discrimination test as prescribed by 38 C.F.R. § 4.85(a). The Board acknowledges the Veteran’s contention that the January 2014 VA examination results do not portray the severity of his condition given his perception that the VA examiner was not acting in a professional manner and was pushing him to guess words during audiometric testing. See April 2018 Board hearing transcript pp. 4-5; July 2020 Appellate Brief. However, the Board finds that the January 2014 VA examination fully addresses the rating criteria and the evidence of record relevant for rating the Veteran’s hearing loss disability. Specifically, the January 2014 VA examiner recorded the puretone thresholds, tested speech discrimination under the Maryland CNC test, noted that the test results and use of speech discrimination scores were appropriate for the Veteran, and documented the functional impact the Veteran’s bilateral hearing loss had on his daily life. The evidence of record does not otherwise indicate that the January 2014 VA examination is inadequate, and the August 2020 VA audiologist also reviewed the audiometric testing and speech recognition scores from this examination. Absent any other indication, the Board finds that the January 2014 VA examination is sufficiently in compliance with the provisions of VA regulations, and is afforded great probative weight in determining the Veteran’s level of hearing impairment for the period prior to December 10, 2018. The Board has also reviewed the record to determine if entitlement to a 10 percent rating arose prior to the December 2018 VA examination, and if entitlement to a rating in excess of 10 percent arose thereafter or at any point during the appeal period. The Board is aware that in determining when an increase is factually ascertainable, all the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. As such, the Board has considered the impact of the Veteran’s hearing loss on his daily life as well as his contentions that his hearing loss is more severe than his current ratings because he was prescribed hearing aids during the appeal period. The Board in no way discounts the Veteran's asserted difficulties or his assertions that his bilateral hearing loss should be rated higher but finds that the worsening in the Veteran’s bilateral hearing loss during the appeal period is the basis for the assigned staged ratings. In this regard, a mechanical application of the audiometric testing results from the December 2018 VA examination establish a 10 percent rating from the date of the examination while the evidence of record does not show adequate audiometric testing results that would warrant a compensable rating prior to the December 10, 2018, VA examination or a rating in excess thereafter. The Board emphasizes that the assignment of schedular disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Veteran’s assertions as to the severity of his bilateral hearing loss disability and its impact on his daily life, though competent and credible, are less probative than the objective audiology studies of record, prepared by skilled professionals, in determining that his bilateral hearing loss does not meet the criteria for higher ratings. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has also specifically considered the Veteran’s statements that his bilateral hearing loss impacts his communication, sleep, and social life. However, the Board finds that the Veteran’s symptoms are contemplated by his assigned ratings under DC 6100 and that an increased rating, separate schedular rating, or secondary claim is not warranted. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that VA's audiometric tests are designed to measure the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). As such, difficulty hearing is precisely the effect that VA’s audiometric tests are designed to measure and, thus, those effects are contemplated by and accounted for in the schedular rating criteria. Moreover, the August 2020 VA audiologist opined that the Veteran’s bilateral hearing loss did not impact his sleep and that his hearing loss symptoms were true to all individuals affected by hearing loss and were not unique to the Veteran. Significantly, in October 2020, the Veteran reported to VA that he did not have any other disabilities related to his bilateral hearing loss. Therefore, the Board finds that the January 2014 and December 2018 VA examinations conducted during the appeal period are the most persuasive and probative evidence as to the severity of the Veteran’s current level of hearing impairment and fall squarely within the parameters of the criteria for a noncompensable rating prior to December 10, 2018, and a 10 percent rating thereafter. Thus, the preponderance of the evidence reflects that the criteria for an initial compensable rating for the Veteran’s service-connected bilateral hearing loss have not been met or more nearly approximated prior to December 10, 2018, and that the criteria for an initial rating in excess of 10 percent thereafter have also not been met or more nearly approximated. The benefit-of-the- doubt doctrine is therefore not for application and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Finally, the Board also acknowledges, that in January 2021 correspondence, the Veteran’s representative generally raised the issue of extraschedular consideration and, as such, the Board has considered whether the Veteran’s bilateral hearing loss should be rated on an extraschedular basis. See January 2021 Appellate Brief. Extraschedular ratings are assigned in cases where an exceptional or unusual disability picture is presented that renders application of the regular rating schedular standards impractical, due to factors such as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular criteria for that disability picture are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). If the rating criteria reasonably describes a veteran’s disability level and symptomatology, then the veteran’s disability picture is contemplated by the rating schedule (i.e., the assigned schedular evaluation is adequate), and no referral is required. However, if the schedular criteria do not contemplate a veteran’s level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321(b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). Id. In the present case, the Board finds that the Veteran’s bilateral hearing loss is not so unusual or exceptional in nature as to render the assigned ratings inadequate. In this regard, the Board finds that when comparing the Veteran’s disability picture with the symptoms contemplated by the Rating Schedule, the Veteran’s symptoms are contemplated by the ratings assigned throughout the appeal period. Here, the Veteran has consistently described the functional impact of his hearing loss as impairment with conversations in the presence of background noise, including difficulty hearing his spouse and grandchildren, and that it is harder to hear the television. These are all typical functional impairments associated with hearing loss, and as noted above, are squarely contemplated by the schedular criteria. Moreover, the August 2020 VA audiologist found that the Veteran’s symptoms, including isolating and avoiding social situations, are not unique to the Veteran and are issues generally associated with bilateral hearing loss. Accordingly, the Board finds that the criteria for the assigned ratings reasonably describes the Veteran’s disability level and symptomatology during the appeal period and have been contemplated in his assigned ratings. Moreover, the Board finds that the Veteran’s assertions, and the other evidence of record, do not support a finding of an exceptional or unusual hearing loss disability, due to such factors as marked interference with employment or evidence of repeated treatment or hospitalization for bilateral hearing loss. Accordingly, this is not an exceptional circumstance in which referral for extraschedular consideration is required during any portion of the appeal period, to include when considering the combined effects of his tinnitus (and any resulting sleep impairment) and bilateral hearing loss disabilities. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.