Citation Nr: 21070362 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-12 561A DATE: November 23, 2021 ORDER A compensable disability rating prior to July 15, 2014, and in excess of 10 percent thereafter for bilateral sensorineural hearing loss is denied. FINDINGS OF FACT 1. Prior to July 15, 2014, the audiometric testing showed hearing loss no greater than a Level IV hearing loss in the right ear, and no greater than a Level II hearing loss in the left ear. 2. As of July 15, 2014, audiometric testing showed to no greater than a Level IV hearing loss in the right ear, and no greater than a Level IV hearing loss in the left ear. CONCLUSIONS OF LAW 1. Prior to July 15, 2014, the criteria for a compensable rating for bilateral sensorineural hearing loss have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86, Diagnostic Code 6100. 2. From July 15, 2014, the criteria for a disability rating in excess of 10 percent for bilateral sensorineural hearing loss have not been met. 38 U.S.C. § 1155; 5107; 38 C.F.R. §§ 3.321, 4.1, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to August 1969. The Board notes that the Veteran requested to appear before a Veterans Law Judge when he appealed the March 2016 statement of the case confirming the denial of his increased rating claims. Prior to the date of his scheduled hearing, however, in June 2021 the Veteran notified the Board that he was withdrawing his request for a hearing. As such, the Board now has jurisdiction to proceed with adjudication of the claim without prejudice to the Veteran. This appeal was remanded by the Board in July 2021 for additional development. Following the Board remand, the VA Regional Office issued a rating decision in September 2021 granting an increase in the Veteran's service-connected hearing loss to 10 percent, effective July 15, 2014. The Board finds that although the Veteran has been granted increased disability rating, it does not constitute a full grant of the benefits sought on appeal; therefore, the claim remains for appellate review. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, this appeal will be adjudicated contemplating the highest rating available to the Veteran. The Veteran is service-connected for bilateral hearing loss, which has been rated as noncompensable prior to July 15, 2014, and at a 10 percent thereafter, under 38 C.F.R. § 4.85, Diagnostic Code 6100. According to the September 2021 Rating decision, which granted the 10 percent disability rating, the July 15, 2014, effective date was based on the date the Veteran indicated his condition had worsened. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) 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). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. As shown below, neither hearing test during the course of the appeal showed that the criterial for an "exceptional pattern of hearing loss" were met. Impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. On the authorized VA audiologic evaluation for rating purposes, in December 2007, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 70 85 LEFT 20 30 45 70 75 The pure tone average was 60 in the right ear and 55 for the left ear. Speech audiometry revealed speech recognition ability of 82 in the right ear and 86 percent in the left ear. These audiometry test results equate to Level IV hearing in the right ear and Level II hearing in the left ear, using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level IV hearing in the right ear and Level II hearing in the left ear results in a noncompensable disability rating. 38 C.F.R. § 4.85. The Veteran was afforded another VA examination in September 2021 where audiometric testing showed pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 75 80 LEFT 20 25 40 80 90 The pure tone average was 60 in the right ear and 58.75 for the left ear. Speech audiometry revealed speech recognition ability of 78 in the right ear and 76 percent in the left ear. These results equate to Level IV hearing in the right ear and Level IV hearing in the left ear, using Table VI. 38 C.F.R. § 4.85. Applying the percentage ratings for hearing impairment found in Table VII, Level IV hearing in the right ear and Level IV hearing in the left ear results in a 10 percent disability rating. 38 C.F.R. § 4.85. Based on the evidence above, the Board finds that a compensable disability rating is not warranted prior to July 15, 2014, and a disability rating in excess of 10 percent is not warranted thereafter. The Board has reviewed the Veteran's treatment notes and found no discussion of ongoing treatment or evaluations of his hearing loss disability and fail to show the results of any hearing tests. Further, he has not undergone audiological testing to suggest that his hearing loss is more severe than reported above. The Board has considered the Veteran's lay statements and reports of hearing loss for this period on appeal. Notably, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), it was the holding of the United States Court of Appeals for Veterans Claims (Court) that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. In this regard, it was noted during the Veteran's VA audiological evaluations that experienced difficulty hearing and understanding conversations and often asks others to repeat themselves. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, while the Veteran is competent to report observable symptoms of his hearing loss, such as difficulty understanding speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percent evaluation under VA's tables for rating hearing loss disabilities, because such an opinion requires medical expertise (training in evaluating hearing impairment and conducting audiometric testing). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Board is sympathetic to the Veteran's assertions that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing under situational circumstances unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. The rating criteria are designed to evaluate difficulty hearing, the complaint put forth by the Veteran. Accordingly, after a review of the evidence the Board finds that a preponderance of the evidence is against a finding that the service-connected bilateral sensorineural hearing loss disability warrants a compensable rating prior to July 15, 2014, and in excess of 10 percent thereafter. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.85, Diagnostic Code 6100; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.