Citation Nr: A21019752 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 200527-88621 DATE: December 13, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the numeric designation of hearing impairment based on pure-tone threshold average and speech discrimination is a Roman numeral I for the left ear and a Roman numeral II for the right ear. 2. Throughout the appeal period, the resulting percentage evaluation for hearing impairment represented by the intersection of Roman numeral designations for each ear does not correspond to a compensable rating. 3. The Veteran did not demonstrate an exceptional pattern of hearing loss in either ear during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1974 to February 1984, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Tennessee National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2013 and May 2020 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before a Veterans Law Judge in November 2018. A copy of the transcript is associated with the claims file and evidence of record. The Board remanded the case in August 2019 to obtain: 1) "outstanding Tennessee National Guard personnel and treatment records;" and 2) "a [medical] opinion as to whether the Veteran's bilateral hearing loss is related to his active service and his subsequent inactive service with the National Guard." The RO's efforts have substantially complied with the instructions contained in the August 2019 BVA remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board emphasizes that substantial compliance, not strict compliance, is all that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (aff'd sub nom. Dyment v. Principi, 287 F.37 1377 (Fed. Cir. 2002)). Further development and further assistance by VA are not warranted. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act or AMA), creating a modernized review system for claims and appeals. The modernized appeals system took effect on February 19, 2019, and provides additional, streamlined options for review of a VA rating decisions. The Veteran opted into the AMA system in May 2020, and in his May 2020 substantive appeal, the Veteran elected the Direct Review docket. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The matter is now returned to the Board for further consideration. In his May 2020 notice of disagreement, the Veteran asserted that he is entitled to a compensable rating for his service-connected hearing loss. See May 2020 VA Form 10182, Notice of Disagreement. Disability evaluations are determined by the application of facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) in 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 in or aggravated during military service and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate, staged ratings are appropriate in adjudicating increased ratings when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007). The period of consideration begins one year prior to the claim for increase and extends to the present. In the case of initial ratings, the period for consideration begins with the effective date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claim for an original or increased rating remains in controversy when less than the maximum available benefit is awarded). Any reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Hearing loss is rated under 38 C.F.R. § 4.85, Diagnostic Code 6100. To that end, the Rating Schedule includes Tables to determine evaluation percentages for hearing loss. Beginning with Table VI, a Roman numeral designation (from Levels I through XI) is associated with the Pure-tone threshold average for each ear. "Pure-tone threshold average," as used in Table VI, is the sum of the pure-tone thresholds at 1000, 2000, 3000 and 4000 Hertz (Hz), divided by four. (The pure-tone threshold at 500 Hz is not used in determining the evaluation but is used in determining whether a ratable hearing loss exists). Once the appropriate Roman numeral designation is found, by comparing "percentage of (speech) discrimination" on the vertical axis and "Pure-tone Threshold Average" on the horizontal axis, Table VII is used to assign a rating by comparing the Roman numeral designations, generated in Table VI, for the "better" and "poorer" ear. VA rating criteria for evaluating hearing loss disability provide ratings from 0 (non-compensable) to 100 percent. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a Pure-tone audiometry test. Examinations are conducted without the use of hearing aids. See 38 C.F.R. § 4.85(a). At the June 2013 VA audio examination, the VA examiner evaluated the Veteran in person and considered his statements, including no reported functional impact on the ordinary conditions of daily life, including the ability to work, due to hearing loss. Pure-tone threshold testing yielded the following results: 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 15 15 30 60 80 Left Ear 15 20 30 40 55 The average pure-tone threshold for the right ear was 46.25 decibels, and for the left ear, 36.25 decibels. There were no frequencies that could not be tested, and the test results were considered valid for rating purposes. Word list speech discrimination (Maryland CNC), appropriate for use with this Veteran, was 88 percent for the right ear and 100 percent for the left ear. Pursuant to the August 2019 Board remand, an additional VA medical examination for hearing loss and tinnitus was completed for the Veteran in January 2020. The claims file and associated evidence of record was reviewed in preparation for the report. The examining physician evaluated the Veteran in person and considered his statements, including a reported functional impact due to hearing loss of having to ask people to "repeat what they said." Pure-tone threshold testing yielded the following results: 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right Ear 20 15 30 55 80 Left Ear 15 20 30 40 60 The average Pure-tone threshold for the right ear was 45.0 decibels, and for the left ear, 37.5 decibels. There were no frequencies that could not be tested, and the test results were considered valid for rating purposes. Word list speech discrimination (Maryland CNC), appropriate for use with this Veteran, was 88 percent for the right ear and 98 percent for the left ear. Evaluating the VA audiological test results cited above, the Board finds that when the pure-tone threshold averages and the speech recognition scores from the VA examinations in both June 2013 and January 2020 are applied to Table VI (Numeric Designation of Hearing Impairment Based on Pure-tone Threshold Average and Speech Discrimination), the numeric designation of hearing impairment for the left ear is Roman numeral I, and the numeric designation of hearing impairment for the right ear is Roman numeral II. The designated numeral "I" from Table VI represents the "better ear," and the designated numeral "II" from Table VI represents the "poorer ear" from the June 2013 and January 2020 VA examinations. When the numerals are applied to Table VII (Percentage Evaluation for Hearing Impairment Diagnostic Code 6100), the corresponding evaluation for hearing impairment is 0 percent, the point at which numeral "II," along the left column, and numeral "I," along the bottom row, intersect. See 38 C.F.R. § 4.85, Table VII. Therefore, a compensable rating is not warranted during the appeal period. See 38 C.F.R. § 4.85, DC 6100. Consideration has also been given to whether a pattern of exceptional hearing impairment exists. However, as the clinical findings from the VA examinations do not reflect pure-tone decibel loss of 55 decibels or more at each (emphasis added) of the specified frequencies (1000, 2000, 3000, 4000 Hertz) or 30 decibels or less at 1000 Hertz and (emphasis added) 70 decibels or more at 2000 Hertz, the provisions for exceptional hearing impairment do not apply. See 38 C.F.R. § 4.86. Consideration has been given to the Veteran's statements regarding his hearing difficulties, and the Board has not overlooked the Veteran's statements regarding the severity of his hearing loss. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge, i.e., asking the people with whom he speaks to repeat themselves. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through VA examination and VA treatment throughout the course of his appeal with respect to the presence of hearing loss symptoms and their severity. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. The Veteran's reported symptomatology has been noted, and the Board has considered the Veteran's reports with respect to this decision. The Veteran contends that his hearing loss is more severe than what is reflected in his current disability rating. Unfortunately, his opinion is of no probative value because he lacks the medical expertise needed to assess his current level of hearing loss. See Jones v. West, 12 Vet. App. 383, 385 (1999) (holding that where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Therefore, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). The evaluation of hearing loss is determined by the prescribed application of the numeric designations to the percentage evaluations in the Rating Schedule, after audiometric evaluations are recorded. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Further, 38 C.F.R. § 4.85, Table VII, assigns a specific percentage rating to each designated numeral of impairment converted during the rating process. Requirements for a compensable rating due to hearing loss are not based on subjective criteria, including the Veteran's belief about what may be appropriate. In reviewing the record, the Board finds that the Veteran's degree of bilateral hearing loss does not meet the standards for a compensable rating at any point during the appeal period. The relevant legal authority governing the evaluation of hearing impairment is clear and unambiguous, and the Board is bound by such authority. The overall weight of the evidence is against a finding that the Veteran is entitled to a compensable rating for his hearing loss. Therefore, his claim for an increased rating must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (Continued on the next page) Finally, the Veteran has not indicated, nor has the evidence raised, that his service-connected hearing loss renders him unable to obtain or maintain substantially gainful employment; thus, consideration for individual unemployability as directed by Rice v. Shinseki, 22 Vet. App. 447 (2009), is not warranted. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.