Citation Nr: 21072497 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-08 498 DATE: December 3, 2021 ORDER Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran has Level I hearing loss in both ears. CONCLUSION OF LAW The criteria for an initial compensable evaluation for bilateral hearing loss have not been met. See 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, 4.87, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to August 1977. This matter comes to the Board of Veterans' Appeals (Board) from a June 2017 rating decision that assigned an initial noncompensable evaluation for bilateral hearing loss and denied service connection for sleep apnea. In August 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to an initial compensable evaluation for bilateral hearing loss is denied. The Veteran asserts that a higher evaluation should be assigned for bilateral hearing loss. At the administrative hearing, the Veteran stated that he currently has a 10 percent evaluation for hearing loss. He reported having problems with ear wax and bloody ear that may be related to his hearing aids. He also reported having a lot of ringing and occasional buzzing in his ears. Before addressing the merits of the Veteran's claim, the Board must clarify the Veteran's current disability evaluations. The Veteran is currently assigned a 10 percent evaluation for tinnitus and a noncompensable evaluation for bilateral hearing loss. The Veteran did not appeal the evaluation for tinnitus, and the Board notes that the Veteran has been assigned the maximum evaluation for this disability. See 38 C.F.R. § 4.87, DC 6260. The Veteran's reports of ringing and buzzing are reflected in the disability evaluation for tinnitus. Turning to the merits of the Veteran's claim, the disability evaluation for bilateral hearing loss is determined by applying the criteria set forth in the rating schedule for hearing impairment. See 38 C.F.R. § 4.85, DC 6100. Evaluations of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech recognition test together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. See id. To evaluate the degree of disability from service-connected hearing loss, Table VI establishes 11 hearing acuity levels designated from Level I through Level XI. See 38 C.F.R. § 4.85, Table VI. Table VII then establishes the percentage evaluation of hearing impairment based on the hearing acuity levels identified by Table VI. See 38 C.F.R. § 4.85, Table VII. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the veteran's disability picture more nearly approximates the criteria for the higher evaluation. See 38 C.F.R. § 4.7. In June 2017, Dr. B.R., a clinical audiologist, performed an in-person VA examination of the Veteran. The audiometric results were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 40 60 60 45 100 LEFT 20 35 60 60 43.75 100 Dr. R. stated that these results were valid for evaluation purposes. The Veteran did not wear hearing aids. He stated that he did not always understand speech and that he turned the television and radio to volumes louder than others appreciated. Dr. R. stated that the Veteran's hearing loss did not impact the ability to work. The Veteran has sought treatment for hearing loss from the VA Medical Center. In October 2017, the Veteran was prescribed hearing aids. The following month, he reported satisfaction with his hearing aids; his wife stated that she no longer asked the Veteran to lower the television volume. Examinations of the ears at this session and in 2018 were unremarkable. In January 2019, the Veteran reported a variety of symptoms, including ear pain, that were diagnosed as bronchitis or sinusitis. A February 2019 examination of the ears was unremarkable. The Board notes that the Veteran's hearing loss does not show an exceptional pattern of hearing impairment. The 2017 VA audiometric results did not show (1) a puretone threshold of 55 decibels or more at each of 1000, 2000, 3000, and 4000 Hertz or (2) a puretone threshold of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. The Board must first use Table VI to determine the numeric designation of hearing impairment based on puretone threshold average and speech recognition. See 38 C.F.R. § 4.85, Table VI. After determining the numeric designation of hearing impairment, the Board must then use Table VII to determine the percentage evaluation for hearing impairment. See 38 C.F.R. § 4.85, Table VII. The Board finds that a noncompensable evaluation is warranted based on the 2017 VA audiometric results. A puretone threshold average of 45 and a speech recognition score of 100 percent results in a numeric designation of Level I hearing for the right ear. See 38 C.F.R. § 4.85, Table VI. Similarly, a puretone threshold average of 43.75 and a speech recognition score of 100 percent results in a numeric designation of Level I hearing for the left ear. See id. A numeric designation of Level I hearing for both ears results in a noncompensable evaluation. See 38 C.F.R. § 4.85, Table VII. The Board recognizes that the Veteran experiences difficulties as a result of hearing loss. While the Veteran asserts that a higher evaluation should be assigned for bilateral hearing loss, the evaluation of hearing loss is determined by a mechanical application of the rating criteria in 38 C.F.R. § 4.85. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). As stated above, the 2017 VA audiometric results do not warrant a compensable evaluation. The Board finds that extraschedular consideration is not warranted in this case. The Veteran's complaints of ringing and buzzing are reflected in the disability evaluation for tinnitus, and his complaints of reduced hearing acuity and clarity are reflected in the disability evaluation for bilateral hearing loss. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). To the extent that there are any complaints not reflected in the disability evaluation for bilateral hearing loss, there is no evidence of marked interference with employment or frequent hospitalization. The Board concludes that the probative evidence is against the claim of an initial compensable evaluation for bilateral hearing loss and that the doctrine of reasonable doubt is not applicable to this case. Accordingly, the claim of an initial compensable evaluation for bilateral hearing loss must be denied. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea began during service, to include as due to work as a cook and to episodes of sinusitis and pneumonia. Remand is required to provide the Veteran with a VA examination. A VA examination must be provided where there is competent evidence of a current disability; evidence of an in-service injury, disease, or event; an indication that the disability may be associated with service; and insufficient competent medical evidence on file to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Here, the Veteran has been diagnosed with sleep apnea, and he has asserted that this disability is related to service. Accordingly, the Veteran should be provided with a VA examination because there is an indication that his sleep apnea may be associated with service, but there is insufficient competent medical evidence on file to decide the claim. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from February 2019 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private provider for sleep apnea. Make two requests for the authorized records from each provider, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for a VA examination for sleep apnea. The examiner must review the claims file and provide a rationale for all opinions. The examiner must opine on whether this disability is at least as likely as not related to service, to include as due to work as a cook during service or to episodes of sinusitis and pneumonia during service. The examiner should consider the service medical records showing treatment for sinusitis and pneumonia as well as the Veteran's lay statements. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ormson, 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.