Citation Nr: 21068057 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-61 123 DATE: November 9, 2021 ORDER Entitlement to an initial compensable rating for hearing loss is denied. REMANDED Entitlement to an initial compensable rating for residuals of cancer of the larynx is remanded. FINDING OF FACT The Veteran's hearing loss has been manifested by auditory acuity no worse than Level II in the right ear and Level III in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1965 to October 1967. The Veteran testified at a hearing before the undersigned in January 2020. A transcript of the hearing has been associated with the record. There has been substantial compliance with the remand in connection with claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to an initial compensable rating for hearing loss. The Board finds that the criteria for an initial compensable rating are not met. 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. Code 6100 sets out the criteria for evaluating hearing impairment using pure tone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables found in 38 C.F.R. § 4.85; there is no room for subjective interpretation. See Acevedo-Escobar v. West, 12 Vet. App. 9, 10 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for bilateral defective hearing range from 0 percent to 100 percent. The basic method of rating hearing loss involves audiological test results of impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. In that situation, 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). Turning to the evidence, on the VA audiological evaluation in November 2016, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 25 70 70 LEFT 20 55 75 85 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 90 in the left ear. The average decibel loss was 46 in the right ear; 59 in the left. The Veteran described the functional impact of the hearing loss as, struggling to understanding conversations and that there are sounds he "does not hear." Applying the above results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear, which equates to a noncompensable disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. An exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 was not shown. The Veteran also received a VA audiological evaluation in September 2017. The pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 40 70 65 LEFT 25 50 65 70 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 86 in the left ear. The average decibel loss was 51 in the right ear; 52 in the left. The Veteran described the functional impact of his hearing loss as, wanting the television at higher volume than his wife, which leads to arguments. The Veteran also noted that his hearing loss is affecting his enjoyment of church and has resulted in a "lack of desire to attend." Applying the above results to Table VI, the findings yield a numeric designation of Level II in both ears, which equates to a noncompensable disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. An exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 was not shown. Pursuant to the June 2021 Board remand, the Veteran was given a VA examination in July 2021. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 35 45 70 70 LEFT 35 60 70 75 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 88 in the left ear. The average decibel loss was 55 in the right ear; 60 in the left. The Veteran described the functional impact of the hearing loss as having, an "inability to understand speech" without looking at faces and misunderstanding speech on the phone. The Veteran also noted that he reads people's lips in order to understand them. Applying the above results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level III in the left ear, which equates to a noncompensable disability rating under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. An exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86 was again not shown. The Board is sympathetic to the Veteran's claim that a higher rating is warranted for his service-connected hearing loss. However, the audiometric examination results, as compared to the rating criteria, do not warrant a compensable rating. The Veteran testified at his January 2020 Board hearing that his bilateral hearing loss has worsened. Specifically, that his hearing had worsened in the past "three or four years." The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports that he struggles to hear conversations and must lip-read to understand people. The Veteran is competent to report difficulty with his hearing; however, 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, 3 Vet. App. at 345. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing and also contemplate exceptional hearing patterns, which were not demonstrated in this case. The functional impacts that the Veteran describes are contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Veteran's audiometric examination results, as compared to the rating criteria, do not warrant a compensable rating for the Veteran's service-connected hearing loss. As such, the Veteran's claim for an initial compensable rating for the period on appeal is denied. Accordingly, the Board finds that the competent, probative evidence weighs against the Veteran's claim for an initial compensable rating at any time during the appeal period. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application and the claim is denied. REASONS FOR REMAND Entitlement to an initial compensable rating for residuals of cancer of the larynx is remanded. The Board most recently remanded the claim in June 2021 for further development; however, there has not been substantial compliance with the remand directives and the claim must be remanded again. Stegall, 11 Vet. App. at 268. The Veteran's residuals of laryngeal cancer are rated under 38 C.F.R. §§ 4.97 Diagnostic Code (DC) 6819-6516, as chronic laryngitis. The claim must be remanded again because the August 2021 examination is inadequate. The examination did not include a full description of the residuals of the larynx cancer. The related VA disability benefits questionnaire (DBQ) includes questions related to the relevant criteria, but the examiner did not complete that portion of the report. The claim is remanded for an examination that specifically addresses the criteria related to laryngitis, as that is the applicable DC. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current nature and severity of the Veteran's residuals of larynx cancer. Copies of all pertinent records must be made available to the examiner for review. The examiner should elicit information about the nature of the Veteran's residuals of larynx cancer disability (rated by analogy to chronic laryngitis), including problems with his voice and coughing. Specifically, the examiner must identify that Veteran has a "[l]arynx or pharynx condition," under Section III and complete Part C. In answering Part C, the examiner must identify any symptoms and functional impairments due to the Veteran's residuals of larynx cancer. The examiner must complete the corresponding VA disability benefits questionnaire (DBQ), provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Attempts should be made to schedule the examinations in a less populated location due to the Veteran's hesitation to drive in "big cities." In addition, the Veteran should be notified that he may submit private examination report son VA Disability Benefits Questionnaires (DBQs) in support of his claim. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. E. Bresler 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.