Citation Nr: 21073501 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-20 312 DATE: December 8, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entirety of the claim period, the Veteran's bilateral hearing loss was no worse than Level I in both ears. When hearing loss is Level I in both ears, a noncompensable rating is assigned under Table VII. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.10, 4.85, 4.86, Diagnostic Code 6100; Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004); Doucette v. Shulkin, 28 Vet. App. 366 (2017); Martinak v. Nicholson, 21 Vet. App. 447 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1968 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for bilateral hearing loss. This rating decision assigned an initial noncompensable rating, effective February 8, 2013the date of receipt of claim. Jurisdiction of the Veteran's claims file currently resides with the Oakland, California RO. In August 2021, the Veteran and his spouse testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Compensable Initial Rating for Bilateral Hearing Loss As indicated above in the Conclusions of Law section, the Board finds that entitlement to an initial compensable rating for bilateral hearing loss is not warranted in the instant case. Accordingly, the Veteran's claim is denied. In support of this determination, the Board first notes that evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Additionally, 38 C.F.R. § 4.86 authorizes VA to evaluate defective hearing based upon puretone thresholds alone when a claimant demonstrates exceptional patterns of hearing impairment. However, in the instant case, the Veteran did not exhibit an exceptional pattern as defined by 38 C.F.R. § 4.86 at any point during the appeal period as puretone thresholds during a single audiometric examination were not measured (1) at 55 decibels or more for each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz); or (2) at 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz. Accordingly, an evaluation pursuant to 38 C.F.R. § 4.86 and Table VIA is not warranted in this case. See also 38 C.F.R. § 4.85. Moving to the evidence of record, the Board acknowledges that the Veteran's primary contentions motivating his appeal are in regard to the evaluative metrics VA uses to rate hearing loss. Specifically, in correspondence dated in April 2021, the Veteran questioned (1) whether the rating tables described in 38 C.F.R. § 4.85 through § 4.86 were outdated, and (2) whether VA's rating criteria and examination process for hearing loss accounted for a person's real-world experiences. Additionally, in September 2021, the Veteran summarized and provided citations to research by VA medical professionals Dr. McCardle and Dr. Wilson purportedly indicating that VA's current evaluative criteria were not valid for hearing environments containing background noise. Relatedly, in March 2014, the Veteran contended that VA's practice of using only the specified frequencies of 1000 through 4000 Hz was not proper as it did not properly represent his entire hearing distribution. Lastly, the Veteran stated in September 2021 that 38 C.F.R. § 4.1 indicated that the rating criteria described in 38 C.F.R. § 4.85 were merely a guide and, accordingly, VA was capable of choosing other criteria in order to address the severity of his impaired hearing. In considering the Veteran's contentions, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court of Appeals for Veterans Claims (CAVC) have directly addressed contentions like those of the Veteran in the past. Firstly, in addressing the Veteran's contention concerning the applicability of the Schedule for Rating Disabilities, the Board acknowledges that the first sentence of 38 C.F.R. § 4.1 states that "[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." (emphasis added). But, the statute underlying the adoption of 38 C.F.R. § 4.138 U.S.C. § 1155is authoritative. 38 U.S.C. § 1155 mandates the Secretary of VA to "adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries." Further, the statute mandates that ratings are to "be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations." Id. Accordingly, although the first sentence of 38 C.F.R. § 4.1 uses the phrase "guide," the CAVC and its predecessors has described 38 C.F.R. § 4.1 as summarizing the general policy behind the Schedule for Rating Disabilities in fulfillment of 38 U.S.C. § 1155's mandate. See, e.g., Brown v. Brown, 5 Vet. App. 413, 416-17 (1993). As such, the Board finds the Veteran's argument that the Schedule for Rating Disabilities is merely a guide and not necessarily applicable in his case to be unpersuasive. Turning next to the Veteran's contentions concerning VA's choice to evaluate hearing loss pursuant to puretone testing results and speech discrimination scores using the Maryland CNC word list, as well as its decision to average puretone results using only frequencies of 1000 through 4000 Hz, the Board notes that the content of the rating schedule as well as VA's actions in adopting or revising the schedule content are excluded from judicial review. See Wanner v. Principi, 370 F.3d 1124, 1130 (Fed. Cir. 2004). Accordingly, although the Veteran may disagree with the criteria and methodology used for assigning hearing loss ratings under 38 C.F.R. §§ 4.85 and 4.86, these choices are at the sole discretion of the Secretary, are binding upon the Board, and may not be substituted by some other rating mechanism. Accordingly, the Board also finds this contention by the Veteran to be unpersuasive. In finding this contention unpersuasive, the Board notes that there is one judicially acknowledged exception to the bar regarding review of the content of the rating schedule: the exception for constitutional challenges. See Martinak v. Nicholson, 21 Vet. App. 447, 451 (2007) (citation omitted). In September 2021, the Veteran indicated that VA's current criteria for evaluating hearing loss violated his right to due process. However, the Veteran did not provide any specific legal support for his contention that his right to due process had been violated. See Brewer v. West, 11 Vet. App. 228, 236-37 (1998) (providing that the CAVC need not consider "mere assertions of constitutional impropriety for which [a claimant] has not provided any legal support") (citing Gov't & Civic Employees Organizing Comm., CIO v. Windsor, 353 U.S. 364, 366 (1957)). Further, the Board notes that the CAVC has yet to deem the content and methodology for evaluating service-connected hearing loss to be constitutionally objectionable, even considering developments in medical knowledge since the current rating criteria for hearing loss were first proposed in May 1987. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017); 52 Fed. Reg. 17,607 (May 11, 1987). Accordingly, the Board finds the constitutional challenge exception to be inapplicable in the instant case. Lastly, regarding the Veteran's contentions concerning his hearing impairment and the effects of background noise, the CAVC has explicitly held as appropriate VA's policy of conducting all audiometry testing in sound-controlled rooms. See Martinak, 21 Vet. App. at 453-54. Further, in regard to the concept of background noise in the assignment of ratings under the current criteria, the CAVC in Doucette v. Shulkin held that the rating criteria for hearing loss provided by 38 C.F.R. §§ 4.85 and 4.86 "contemplate[d] the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment." 28 Vet. App. at 369. Accordingly, the Board finds this contention of the Veteran to also be unpersuasive. Moving beyond the Veteran's contentions concerning VA's hearing loss rating criteria and its methods for evaluating hearing loss claimants, the Board notes that the Veteran was provided two VA audiological examinations during the claim period. Firstly, during a June 2013 VA examination, the Veteran produced the following results during puretone threshold testing of the right ear: 25 decibels at 1000 Hz, 20 decibels at 2000 Hz, 30 decibels at 3000 Hz, and 40 decibels at 4000 Hz. Thus, the average hearing threshold level for the right ear was 28.75 decibels. Comparatively, for the left ear, the following results were obtained: 20 decibels at 1000 Hz, 45 decibels at 2000 Hz, 55 decibels at 3000 Hz, and 55 decibels at 4000 Hz. Accordingly, for the left ear, the average hearing threshold was 43.75 decibels. During the June 2013 VA examination, speech discrimination testing was also conducted using the Maryland CNC word list. The Veteran produced speech recognition scores of 98 percent for the right ear and 96 percent for the left ear. Applying these figures from the June 2013 VA examination to Table VI of 38 C.F.R. § 4.85 results in the assignment of Level I hearing impairment for both ears. Under Table VII of 38 C.F.R. § 4.85, when both ears are assigned Level I impairment, VA must assign a noncompensable rating. Accordingly, the results of the June 2013 VA examination indicated that the Veteran's hearing loss was noncompensable for VA purposes. About two and half years later, the Veteran was provided another VA audiological examination. Specifically, in January 2016, the Veteran produced the following puretone threshold results for the right ear: 25 decibels at 1000 Hz, 30 decibels at 2000 Hz, 35 decibels at 3000 Hz, and 45 decibels at 4000 Hz. Using these figures, the average hearing threshold level for the right ear was 33.75 decibels. Comparatively, for the left ear, the Veteran produced the following puretone threshold results: 15 decibels at 1000 Hz, 30 decibels at 2000 Hz, 45 decibels at 3000 Hz, and 45 decibels at 4000 Hz. Thus, for the left ear, the average hearing threshold was also 33.75 decibels. Using the Maryland CNC word list, the Veteran produced speech recognition scores of 96 percent for the right ear and 92 percent for the left ear. Applying these puretone and speech recognition results to Table VI of 38 C.F.R. § 4.85 again results in the assignment of Level I hearing impairment for both ears. As both ears were Level I impaired, Table VII of 38 C.F.R. § 4.85 mandated the assignment of a noncompensable rating for the Veteran's hearing loss. Thus, similar to the June 2013 VA examination results, the results of the January 2016 VA examination indicated that the Veteran's hearing loss was noncompensable for VA purposes. Apart from these two VA examinations, no other audiometric testing has been associated with the Veterans' claims file. As none of the Veteran's adequate VA examination reports indicate that an initial compensable rating for bilateral hearing loss is warranted pursuant to Table VII of 38 C.F.R. § 4.85, the Board denies the Veteran's claim. (Signature on Next Page S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.