Citation Nr: 21077046 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-44 543 DATE: December 28, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT During the rating period on appeal, the Veteran's bilateral hearing loss was manifested by no worse than Level II hearing impairment in the right ear and Level I for the left ear. CONCLUSION OF LAW The criteria for entitlement for a compensable disability for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.85. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1969 to January 1971. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and the Combat Action Ribbon. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in October 2018. A transcript of that hearing has been added to the Veteran's file. The appeal was previously before the Board in March 2019. The matter was remanded for additional development. That development having been completed (namely obtaining the Veteran's VA treatment records and completing a contemporaneous VA examination), the Board finds substantial compliance with its remand instructions. In its March 2019 remand, the Board also remanded the issues of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, and the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In an August 2021 rating decision, the RO granted the Veteran's claim for service connection for peripheral neuropathy of the bilateral upper extremities. In a September 2021 rating decision, the RO granted a TDIU, effective February 11, 2015. The RO's grant of service connection is a complete grant of benefits sought for that particular claim, so no further action from the Board is warranted. With respect to the TDIU claim, the grant of that issue corresponds with the rating period on appeal here. Further, there is no evidence (and neither the Veteran nor his representative have contended) that the Veteran's TDIU is attributable to one disability, therefore possibly rendering him eligible for special monthly compensation. Absent such evidence or argument, and given the RO's grant of that issue, the Board finds that entitlement to a TDIU is also no longer before the Board. Increased Rating Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. With hearing loss disabilities, evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a puretone audiometry test. In 38 C.F.R. § 4.85, the vertical lines of Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns of Table VI represent nine categories of decibel (dB) loss based on the puretone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage disability evaluation is then found from Table VII of 38 C.F.R. § 4.85, by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. Further, the provisions of 38 C.F.R. § 4.86 address exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 dB or more, 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. 38 C.F.R. § 4.86(a). Each ear will be evaluated separately. Further, when the puretone threshold is 30 decibels or less at 1,000 Hz and 70 dB or more at 2,000 Hz, 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. 38 C.F.R. § 4.86(b). That numeral will then be elevated to the next higher Roman numeral. The Veteran seeks a compensable evaluation for his service connected bilateral hearing loss, which was rated as noncompensable from March 2013. At his October 2018 VA hearing, the Veteran testified he believes his hearing has worsened. The Veteran reported he was advised he needs hearing aids. The Veteran underwent a VA examination in May 2021. The results are provided below: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 55 70 75 60 96% LEFT 40 55 60 60 53.75 96% The Veteran's average puretone decibel loss in the right ear was 60 and 53.75 in his left ear. Speech discrimination was 96 percent in both ears. The Veteran does not exhibit an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) in either ear. Applying 38 C.F.R. § 4.85, Table VI, to the audiological findings, the Veteran's right ear is assigned the numeric designation of II and the left ear is assigned a numeric designation of I. Application of 38 C.F.R. § 4.85, Table VII results in a finding of a noncompensable rating. The Veteran underwent an earlier VA examination in May 2015. The results of that examination showed a better puretone average than the May 2021 examination, with speech recognition scores of 92 percent in the right ear and 94 percent in the left. Applying the results of this examination to Table VII similarly results in a noncompensable rating. There is no other competent evidence reflecting that the Veteran's hearing loss has diminished to a point to be considered compensable for VA purposes. The Board has considered the Veteran's testimony at his October 2018 hearing regarding the severity of his hearing loss. The Veteran is competent, as a layperson, to report on that as to which he has personal knowledge, such as difficulty hearing. 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377. Nevertheless, as a layperson, without the appropriate medical training and expertise, he is not competent to provide a probative opinion on a medical matter, especially the severity of his bilateral hearing loss disability in terms of the applicable rating criteria. Rather, this necessarily requires appropriate medical findings regarding the extent and nature of his bilateral hearing loss, including puretone audiometry testing. The assignment of disability ratings for hearing impairment is derived from the application of a mechanical formula. There is no basis for granting a compensable rating for the Veteran's bilateral hearing loss under the applicable rating criteria, and no other testing for consideration in this respect. Further, there is no evidence of any symptoms associated with the Veteran's hearing loss other than a difficulty hearing and understanding speech (including over the phone and in face-to-face conversation). The Court of Appeals for Veterans Claims has consistently found the hearing loss code to encompass such symptoms, and absent evidence or contention of any exceptional symptoms not contemplated by the rating criteria, extraschedular consideration is not warranted. (Continued on next page) Applying the facts in this case based on the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for bilateral hearing loss. The benefit-of-the-doubt rule is not applicable, and the claim for entitlement to a compensable disability rating for bilateral hearing loss is denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.