Citation Nr: 21065977 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-32 787 DATE: October 28, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss prior to June 11, 2018 is denied. From June 11, 2018, a 30 percent rating, but no higher, for the Veteran's bilateral hearing loss is granted. FINDINGS OF FACT Prior to June 11, 2018, the Veteran's bilateral hearing loss was manifested by numeric designations no greater than Level II bilaterally. From June 11, 2018, the Veteran's bilateral hearing loss was manifested by numeric designations no greater than Level VII in the right ear and Level V in the left ear. CONCLUSIONS OF LAW 1. Prior to June 11, 2018, the criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100, 4.86. 2. From June 11, 2018, the criteria for a 30 percent rating for bilateral hearing loss, but no greater, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, DC 6100, 4.86 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1965 to May 1967 with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified before the undersigned. These matters have been advanced on the docket pursuant to 38 C.F.R. § 20.902. The Veteran asserts that his bilateral hearing loss warrants a higher rating throughout the appeal period. See July 2016 Notice of Disagreement, July 2016 Veteran lay statement. The Veteran is currently in receipt of a noncompensable rating from May 11, 2015, the effective date of service connection. The assignment of a disability rating for a hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85. Thus, any examination for hearing impairment that does not contain Maryland CNC testing is, by law, inadequate for rating purposes unless the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of §4.86. 38 C.F.R. § 4.85(c). 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 as measured by pure tone audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. §§ 4.85, 4.87, Tables VI and VII. When the pure tone 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. 38 C.F.R. § 4.86. Each ear will be evaluated separately. Id. When the pure tone 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. Id. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. Id. 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 the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86. 38 C.F.R. § 4.85(c). Thus, while a Veteran may have hearing loss diagnosed by a medical treatment provider and described in various ways, he may not have compensable hearing loss for VA purposes pursuant to 38 C.F.R. § 4.85. See Lendenmann, supra. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Throughout the appeal period, the Veteran submitted to VA examinations in August 2015 and May 2016. The August 2015 VA audiologist recorded right ear hearing thresholds of 45 decibels at 1000 hertz, 50 decibels at 2000 hertz, 50 decibels at 3000 hertz, and 60 decibels at 4000 hertz, with an 84 percent Maryland CNC compliant speech discrimination score. See August 2015 VA Audiologist Examination Report. The August 2015 audiologist recorded left ear hearing thresholds of 50 decibels at 1000 hertz, 50 decibels at 2000 hertz, 55 decibels at 3000 hertz, and 60 decibels at 4000 hertz, with an 84 percent speech discrimination score. Id. The Veteran had an average sensitivity threshold of 51 decibels for the right ear and 54 decibels for the left ear. Id. When applied to 38 C.F.R. § 4.85, Table VI, both ears generate Roman Numeral II. As the puretone thresholds do not qualify as exceptional hearing loss patterns, Table VII is for application and the Veteran's bilateral hearing loss generates a non-compensable rating. The May 2016 VA examiner recorded right ear hearing thresholds of 55 decibels at 1000 hertz, 35 decibels at 2000 hertz, 50 decibels at 3000 hertz, and 50 decibels at 4000 hertz with a 98 percent speech discrimination score. See May 2016 VA Audiologist Examination Report. The May 2016 VA audiologist recorded left ear hearing thresholds of 55 decibels at 1000 hertz, 40 decibels at 2000 hertz, 60 decibels at 3000 hertz, and 65 decibels at 4000 hertz, with a 96 percent speech discrimination score. Id. The Veteran had an average sensitivity threshold of 48 decibels for the right ear and 55 decibels for the left ear. Id. When applied to 38 C.F.R. § 4.85, Table VI, both ears generate Roman Numeral I. As the puretone thresholds do not qualify as exceptional hearing loss patterns, Table VII is for application and the Veteran's bilateral hearing loss generates a non-compensable rating. In addition to the two VA examinations of record, the Veteran submitted a June 11, 2018, audiogram completed by a VA medical center audiologist that included Maryland CNC-compliant speech discrimination scores. 38 C.F.R. § 4.85(a). The June 2018 VA audiologist recorded right ear hearing thresholds of 60 decibels at 1000 hertz, 60 decibels at 2000 hertz, 60 decibels at 3000 hertz, and 70 decibels at 4000 hertz with a 56 percent speech discrimination score. See June 2018 VA Audiogram. The June 2018 VA audiologist recorded left ear hearing thresholds of 60 decibels at 1000 hertz, 55 decibels at 2000 hertz, 65 decibels at 3000 hertz, and 75 decibels at 4000 hertz, with a 68 percent speech discrimination score. Id. The Veteran had an average sensitivity threshold of 63 decibels for the right ear and 64 decibels for the left ear. Id. When applied to 38 C.F.R. § 4.85, Table VI, the right ear generates Roman Numeral VII, and the left ear generates Roman Numeral V. When applied to Table VII, the Veteran's bilateral hearing loss generates a 30 percent rating. Additionally, as all of the puretone thresholds are over 55 decibels, this Veteran's hearing loss now qualifies for consideration under 38 C.F.R. § 4.86 as an exceptional hearing loss pattern. Thus, when applied to Table VIa, the Veteran's right and left ear each generate Roman Numeral V. When applied to Table VII, this generates a 20 percent rating, and therefore use of Table Via is of no advantage to the Veteran. Accordingly, based on these results, the Veteran's hearing loss warrants a 30 percent rating from June 11, 2018. In addition to the preceding medical evidence, the Veteran submitted lay evidence in support of his appeal. Initially, in this regard, the Board notes that while the Veteran is competent to report symptoms observable to a lay person, such as his report that he has great difficulty hearing, he lacks the required medical training to make conclusions about the level of his hearing impairment. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues); c.f. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). See also 38 C.F.R. § 4.85. In this regard, the Veteran argued that his hearing loss causes him frustration in that he always has to have people repeat themselves, that he has trouble hearing alarms and emergency vehicles, and that he should be compensated at the same level as any other Veteran who also requires hearing aids due to service-connected hearing impairment, and this functional impairment was noted by the VA examiners who conducted his audiological testing. See August 2015 VA examination report, May 2016 VA examination report, July 2017 Veteran lay statement; Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). While the Board sympathizes with the Veteran's frustration regarding his hearing loss disability, compensation for service-connected hearing loss is restricted to applying audiogram results in a "purely mechanical application." See Lendenmann, supra. Accordingly, and for the reasons set forth above, the Board finds that prior to June 11, 2018, the Veteran's bilateral hearing loss has more closely approximated a 0 percent rating and from June 11, 2018, it has more closely approximated a 30 percent rating, but no greater. 38 C.F.R. §§ 3.102, 4.6, 4.7, 4.85, 4.86. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.