Citation Nr: 21064370 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-27 494 DATE: October 19, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. On VA audiological testing in March 2012, the Veteran's hearing acuity was Level II in the right ear and Level IV in the left ear. 2. On VA authorized audiological testing in July 2020 and December 2020, the Veteran's hearing acuity was Level I, bilaterally. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, 4.86, Diagnostic Code (DC) 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active naval service from March 1973 to March 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for bilateral hearing loss and assigned a noncompensable evaluation. The case was previously before the Board in February 2019 and April 2021 when it was remanded for further development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating for Bilateral Hearing Loss Disability ratings are determined by applying the criteria set forth in 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. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Under DC 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from non-compensable 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 pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 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, Diagnostic Code 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, DC6100. Hearing tests will be conducted without hearing aids, and the results are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. Pertinent case law also provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the ratings schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Analysis The Veteran in this case asserts that his hearing loss is worse than the currently assigned noncompensable rating. However, for the reasons expressed below, the Board finds that a compensable rating is not warranted. In March 2012, the Veteran underwent a VA audiology examination, at which time pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 20 30 35 55 35 LEFT 5 45 5 60 29 Speech audiometry revealed speech recognition ability of 88 percent for the right ear and 72 percent in the left ear. The examiner noted that test results were valid for rating purposes. Regarding functional effects, the examiner noted the Veteran reported difficulty understanding speech when not face to face, or in the presence of background noise. Here, applying the March 2012 audiometric result to Table VII, the Veteran had Level II hearing acuity in the right ear and Level IV hearing acuity in the left ear, resulting in a noncompensable rating. 38 C.F.R. § 4.85, DC 6100. An exceptional hearing pattern was not shown. The Veteran underwent a VA audiometric re-evaluation in October 2013. The treatment note indicates the Veteran had mild sloping to a moderate high frequency sensorineural hearing loss in the right ear and mild relatively flat sensorineural hearing loss in the left ear. The audiologist noted improvement in pure tone thresholds as compared to the 2012 evaluation. However, the examiner did not use the Maryland CNC test, as is required by federal regulations. 38 C.F.R. § 4.85(a). Therefore, this evaluation is inadequate for rating purposes. During the Veteran's February 2017 VA audiology re-evaluation, audiometry testing revealed that pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 25 50 27.5 LEFT 15 25 35 45 30.0 Speech discrimination testing was not performed. Federal regulations require that an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Therefore, this evaluation is inadequate for rating purposes. On the VA authorized audiological evaluation in July 2020, audiometry revealed that pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 25 50 27.5 LEFT 15 25 35 45 30 Speech audiometry revealed speech recognition ability of 96 percent for the right ear and 96 percent in the left ear. The examiner noted that test results were valid for rating purposes. Here, regarding the functional effects of the Veteran's hearing loss, the Veteran reported difficulty hearing speech at a distance and in noisy environments. Due to discrepancy in left air conduction thresholds compared to the March 2012 audiogram, the examiner recommended a second opinion audiogram. Applying the July 2020 audiometric result to Table VII, the Veteran had Level I hearing acuity in the right ear and Level I hearing acuity in the left ear, resulting in a noncompensable rating. 38 C.F.R. § 4.85, DC 6100. An exceptional hearing pattern was not demonstrated. Additional audiometric testing, conducted in December 2020, revealed that pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 15 25 30 50 30 LEFT 15 15 40 45 28.75 Speech audiometry revealed speech recognition ability of 96 percent for the right ear and 96 percent in the left ear. The examiner noted that inter-test consistency was good, and Maryland CNC recording was used. Applying the December 2020 audiometric result to Table VII, the Veteran had Level I hearing acuity in the right ear and Level I hearing acuity in the left ear, resulting in a noncompensable rating. 38 C.F.R. § 4.85, DC 6100. An exceptional hearing pattern was not demonstrated. Based on the foregoing, the Board finds that a compensable rating for bilateral hearing loss is not warranted at any time during the appeal. The audiological findings are consistent with the criteria for a noncompensable rating under DC 6100. The Board emphasizes that schedular disability ratings for bilateral hearing loss are derived by a mechanical application of the Rating Schedule. Lendenmann, 3 Vet. App. at 349. In addition to dictating objective test results, an audiologist must fully describe the functional effects caused by a hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Here, regarding functional effects of the Veteran's hearing loss, the VA examiners noted that the Veteran had difficulty understanding speech when not face to face, or in the presence of background noise. The Board does not discount the difficulties the Veteran has with his auditory acuity. While competent to report observable symptoms such as difficulty hearing, he is not competent to opine that his hearing acuity is of sufficient severity to warrant a higher disability rating under VA's tables for rating hearing loss disabilities, as such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, the lay opinions and observations of the Veteran alone are not sufficient to address the rating criteria under 38 C.F.R. § 4.85, DC 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159(a)(1) and (2). Finally, 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, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record. As a preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.