Citation Nr: 21070344 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-13 330 DATE: November 23, 2021 ORDER A compensable disability rating for bilateral hearing loss is bilateral hearing loss is denied. FINDING OF FACT The Veteran's service-connected bilateral hearing loss is manifested by no worse than Level I hearing in his right ear and no worse than Level VIII hearing in his left ear. CONCLUSION OF LAW The criteria for a compensable disability rating for the Veteran's service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100, and Tables VI, VIA, and VII. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied an increased rating for the Veteran's service-connected bilateral hearing loss. In February 2019, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is included in the claims file. The case was previously before the Board in September 2020, when it was remanded for examination of the Veteran. The requested development has been completed. The Veteran seeks a compensable disability rating for his service-connected bilateral hearing loss. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. Ratings of impaired hearing are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85, 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 and the pure tone threshold average. The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone average intersect. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by 4. Table VII, Percentage Evaluation for Hearing Impairment, is used to determine the rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The disability rating is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Exceptional patterns of hearing impairment can also be rated with consideration under 38 C.F.R. § 4.86. When the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000 and 4000 Hertz is 55 decibels or more, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. Table VIA can also 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. 38 C.F.R. § 4.85(c). The Veteran's service-connected bilateral hearing loss is rated as noncompensable under 38 C.F.R. § 4.85, Diagnostic Code 6100. He filed his claim for an increased rating in January 2014. In May 2014, a VA audiology Compensation and Pension examination of the Veteran was conducted. The pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 25 20 40 50 33.75 LEFT 45 55 100 105 76.25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. These audiometric results translate into level I for the right ear and level II for the left ear. The audiology findings show that the Veteran's left ear does show an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, and when considered under Table VIA shows level VII for the left ear. However Level I hearing in one ear and Level VII hearing in the other warrants the assignment of a noncompensable (0%) disability rating. 38 C.F.R. § 4.85. Table VII. In October 2020,, the most recent VA audiology Compensation and Pension examination of the Veteran was conducted. The pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 Average RIGHT 30 25 45 50 37.5 LEFT 60 70 70 105+ 76.25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 56 percent in the left ear. These audiometric results translate into level I for the right ear and level VIII for the left ear. The audiology findings again show that the Veteran's left ear has an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, and when considered under Table VIA shows level VII for the left ear this is lower than the Level VIII hearing under Table VI, so it is more advantageous to rate the Veteran's hearing loss disability without consideration under 38 C.F.R. § 4.86. At the 2020 examination, the Veteran reported the functional impact of his hearing loss as "I still can't hear even with the hearing aids. I cannot hear when background noise is present." VA medical treatment records have been obtained and reveal he has received regular treatment at a VA audiology clinic from 2014 to the present and that he has been prescribed and issued hearing aids. While the actual audiology assessment results are not of record the narrative discussion in a June 2019 treatment report indicates that his hearing loss is light to moderate through 4000 Hz with a moderately severe to severe loss in the higher frequencies of the right ear, and mild through 500 Hz dropping to a moderately severe to profound mixed at higher frequencies of the left ear. His word recognition ability is excellent in the right ear and very poor in the left. At the time of the 2019 treatment visit he was recommended for fitting of new hearing aids. The Board notes that the narrative findings of the VA audiology treatment records are consistent with the test findings in the VA examination reports of record. At the Veteran's February 2019 hearing, he testified that despite his hearing had worsened since his prior VA examination in 2014. He also stated that his hearing aids helped sometimes, such as when driving when directional hearing was needed. He did report difficulty with conversations, especially in situations with background noise. The Board acknowledges that the Veteran has bilateral hearing loss and that his left ear hearing loss is severe when compared to his right ear. However, the evidence of record reveals that, at worst, the Veteran's hearing is manifested by Level I hearing in the right ear and Level VIII hearing in the left, which only warrants the assignment of a noncompensable (0%) disability rating. 38 C.F.R. § 4.85, Table VII. Accordingly, the competent evidence of record does not reflect that the Veteran's bilateral hearing loss warranted a compensable rating during the rating period. To the extent that the Veteran contends that his bilateral hearing loss is more severe than reflected by his current disability rating, the Board acknowledges that the Veteran can attest to factual matters of which he has first-hand knowledge and understanding as a lay person such as difficulty understanding conversation. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to state that his hearing acuity is of a severity sufficient to warrant a higher rating under VA's tables for rating hearing loss disability because such an opinion requires medical expertise and knowledge that he has not been shown to possess. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Board attaches more probative weight to the medical records and clinical findings from the skilled medical professionals who conducted the VA audiological testing than to the Veteran's lay testimony. Moreover, the assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained and applied in this decision. In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a compensable disability rating is warranted. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected bilateral hearing loss, nor have any other such issues been reasonably raised by the record. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017). Specifically, the Veteran has described the functional impact from his bilateral hearing loss as difficulty hearing. The provisions of 38 C.F.R. §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely difficulty understanding speech and the inability to hear sounds in various contexts. Doucette, 28 Vet. App. at 369. The situations noted by the Veteran in this case amount to decreased hearing and difficulty understanding speech in an everyday environment and are not exceptional or unusual for someone with hearing loss. The Board therefore finds that the criteria for a compensable disability rating for the Veteran's service-connected bilateral hearing loss have not been met at any time during the relevant rating period. As the preponderance of the evidence is against the assignment of a compensable disability rating the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Havelka, 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.