Citation Nr: 21074593 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-26 641 DATE: December 15, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level II in both ears. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) from an October 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. The Board remanded this matter in May 2021 for further development. There has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a compensable rating for bilateral hearing loss is denied. The Veteran contends that he is entitled to a higher rating because he has to have 'the TV up loud,' speaks louder than usual on the phone, and cannot hear when someone is not facing him when talking to him. See April 2021 Board hearing transcript at 3. The RO granted service connection for bilateral hearing loss in a January 2016 rating decision with a noncompensable rating effective August 21, 2014. The Veteran filed a claim for increased rating in August 2017. Thus, the period on appeal begins August 24, 2016, one year prior to receipt of the Veteran's claim. 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 Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the 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. 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. 38 C.F.R. § 4.86(a). 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A June 2017 audiological evaluation reflects, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 35 40 75 80 57.5 LEFT 35 50 70 80 58.75 While speech recognition testing revealed speech recognition ability of 96 percent bilaterally, the evaluation does not indicate if the Maryland CNC speech discrimination test was used. A September 2017 VA examination reveals that the Veteran reported difficulty hearing his wife speak when she is not facing him and having to watch separate TVs because his is too loud for her. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: September 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 55 80 85 64 92 LEFT 25 35 65 70 49 96 The September 2017 examiner indicated the Veteran's volunteered responses during pure tone testing were not consistent with speech reception thresholds or speech discrimination scores. The examiner concluded that the Veteran may have some degree of hearing loss; however, the examiner would hesitate to make conclusions based on these results. On the authorized audiological evaluation in July 2021, pure tone thresholds, in decibels, were as follows: July 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 30 80 75 52.5 92 LEFT 30 50 70 75 56.25 92 The Veteran reported difficulty watching TV, listening to radio, hearing someone who has their back turned to him, and hearing the doorbell and phone. Applying the July 2021 results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. §4.85, Table VII, also equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown at any time during the appeal period. Even if the Board were to assume the June 2017 audiological evaluation utilized the Maryland CNC discrimination test in the absence of a clear indication that such test was used, applying the June 2017 results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, would still equate to a noncompensable disability rating under Diagnostic Code 6100. The examiner who provided the September 2017 examination indicated the audiometric results obtained were unreliable and not valid for rating purposes because the Veteran's volunteered responses during pure tone testing were not consistent with speech reception thresholds or speech discrimination scores and were inconsistent with organic hearing loss. Thus, the Board will not utilize the results for rating purposes herein. Based on the competent and probative evidence, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's reports of decreased hearing. 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 v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is 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 issue of consideration of an extraschedular rating was raised by the November 2021 appellate brief. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. When a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In this case, the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech. Thus, the threshold issue under Thun is not met, and further consideration of an extraschedular rating is not warranted. Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusions above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.Aoughsten, 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.