Citation Nr: 21005631 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-17 612 DATE: February 2, 2021 ORDER Beginning November 17, 2019, entitlement to a rating in excess of 40 percent for a bilateral hearing loss disability is denied. REMANDED Entitlement to a rating in excess of 30 percent for a bilateral hearing loss disability for the appellate period prior to November 17, 2019 is remanded. FINDINGS OF FACT 1. In VA audiological testing on November 17, 2019, the Veteran’s hearing acuity was Level XI in the right ear and Level V in the left ear. 2. In VA audiological testing on September 26, 2020, the Veteran’s hearing acuity was Level VIII in the right ear and Level VII in the left ear. CONCLUSION OF LAW Beginning November 17, 2019, the criteria for a rating in excess of 40 percent for a bilateral hearing loss disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from October 1953 to October 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, in March 2019, the Board remanded this matter for further development. In April 2020, the Board granted entitlement to a disability rating of 40 percent for the Veteran’s bilateral hearing loss disability beginning November 17, 2019, and remanded the issues of entitlement to ratings in excess of 30 percent prior to November 17, 2019 and in excess of 40 percent thereafter to ensure compliance with prior remand directives. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to a rating in excess of 40 percent for a bilateral hearing loss disability beginning November 17, 2019 Beginning November 17, 2019, the Veteran is in receipt of a 40 percent rating for his bilateral hearing loss disability. He asserts that a higher rating is warranted. Under DC 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, DC 6100. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See id. Hearing tests will be conducted without hearing aids, and the results are charted on Table VI and Table VII. See id. Where impaired hearing is service connected in only one ear, the non-service-connected ear will be assigned a Roman numeral I for rating purposes. See 38 C.F.R. § 4.85(f). VA regulations also provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. Pertinent case law also provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the ratings schedule to the numeric designations assigned after audiometry evaluations are rendered. Doucette v. Shulkin, 28 Vet. App. 366 (2017); Lendenmann v. Principi, 3 Vet. App. 345 (1992). Relevant to the instant period on appeal, in November 2019, the Veteran was provided a VA examination to determine the severity of his bilateral hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105+ 105 75 80 80 LEFT 65 65 65 65 65 The speech recognition scores, using the Maryland CNC Test, were 16 percent in the right ear and 76 percent in the left ear. The average decibel loss was 85 on the right and 65 on the left. Using Table VI, the Board finds that the Veteran’s November 2019 VA examination results revealed Level XI hearing loss in the right ear and Level IV in the left ear. In addition, as the pure tone threshold at each of the four specified frequencies is 55 decibels or more for both ears, Table VIA must also be used for both ears, and the higher numeral for each ear from Tables VI and VIA will be used for determining the proper rating. Using Table VIA, the Veteran had Level VIII hearing loss in the right ear and Level V hearing loss in the left ear. Combining the highest numeral for each ear from Tables VI and VIA, specifically the right level from Table VI and the left level from Table VIA, results in a 40 percent disability rating under Table VII. In September 2020, the Veteran was provided an additional VA examination to determine the severity of his bilateral hearing loss. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 105 100 85 80 85 LEFT 75 80 80 85 80 The speech recognition score, using the Maryland CNC Test, was 76 percent in the left ear. The September 2020 VA examiner indicated that speech discrimination could not be tested in the right ear, as the use of the speech discrimination score was not appropriate for this Veteran “because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make the combined use of pure tone average and speech discrimination scores inappropriate.” The average decibel loss was 87.5 on the right and 81.25 on the left. Using Table VI, the Board finds that the Veteran’s September 2020 VA examination results revealed Level V hearing loss in the left ear. Under 38 C.F.R. § 4.85(c), Table VIA will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. Accordingly, based on the September 2020 VA examiner’s certification that use of the speech discrimination test was not appropriate for the Veteran’s right ear, Table VI is not applicable to the Veteran’s right ear hearing loss, and it must instead be evaluated under Table VIA. In addition, as the pure tone threshold at each of the four specified frequencies is 55 decibels or more for both ears, Table VIA must also be used for both ears, and the higher numeral for each ear from Tables VI and VIA will be used for determining the proper rating. Using Table VIA, the Board finds that the Veteran’s September 2020 VA examination results revealed Level VIII hearing loss in the right ear and Level VII in the left ear. Combining the highest numeral for each ear from Tables VI and VIA, which would be Level VIII hearing loss in the right ear and Level VII in the left ear, results in a 40 percent disability rating under Table VII. There are no further audiogram results of record pertinent to the instant period on appeal. The Board notes the United States Court of Appeals for Veterans Claims has held that, “in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.” Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Here, the November 2019 and September 2020 VA examiners both indicated that the Veteran’s hearing loss impacts the ordinary conditions of his daily life, including the ability to work. In the September 2020 VA examination report, the Veteran reported he cannot hear most things and he has significant difficulty hearing in all situations. To the extent that the Veteran contends that his hearing loss is more severe than currently rated, the Board observes that the Veteran, while competent to report observable symptoms such as difficulty hearing, is not competent to opine that his hearing acuity is of sufficient severity to warrant a disability rating in excess of 40 percent under VA’s tables for rating hearing loss disabilities, as such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges the Veteran’s reports of difficulty hearing, but even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for a disability rating in excess of 40 percent are not met. See Lendenmann, supra. The rating schedule contemplates impairment under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Furthermore, pursuant to Martinak, the functional effects caused by the Veteran’s bilateral hearing loss were considered and addressed in the November 2019 and September 2020 VA examination reports. See 21 Vet. App. at 455. While the Board is sympathetic to the Veteran’s contentions, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. The Veteran’s subjective report of difficulty hearing cannot be the basis for a disability rating in excess of 40 percent. The Board must apply the law as promulgated and is bound by VA regulations. See Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). As the law is dispositive of the issue on appeal, the claim must be denied because of the absence of legal merit or entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, for the reasons set forth above, entitlement to a disability rating in excess of 40 percent for bilateral hearing loss beginning November 17, 2019 is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for a bilateral hearing loss disability for the appellate period prior to November 17, 2019 is remanded. The Veteran asserts he is entitled to a disability rating in excess of 30 percent for his bilateral hearing loss disability prior to November 17, 2019. The Board regrettably finds that another remand is necessary to ensure substantial compliance with the Board’s previous remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In its March 2019 decision, the Board noted that the evidence reflected that the Veteran underwent an audiogram during a VA audiology consultation conducted on April 20, 2017, but that the actual audiogram results were not of record. Accordingly, the Board requested that the audiogram results from the April 20, 2017 VA audiology consultation be associated with the claims file. In its April 2020 decision, the Board again noted that while the April 20, 2017 VA audiological consultation notes had been associated with the claims file (multiple times), the actual audiogram results have not, and there is no evidence to suggest that the audiogram is not available. Consequently, the Board requested that the actual VA audiogram report from April 20, 2017 be associated with the claims file, that all attempts to obtain the evidence should be documented, and that if the audiogram is unavailable, a formal finding of unavailability should be made. Unfortunately, the results of the April 20, 2017 audiogram have still not been associated with the claims file, and no formal finding of unavailability has been made. Rather, the RO has once again simply provided a copy of the April 20, 2017 VA audiology consultation notes. See VA treatment records received April 2020. Thus, remand is required to obtain the April 20, 2017 VA audiogram, or, if it is not available, a formal finding of unavailability should be made. Accordingly, the matter is REMANDED for the following action: 1. Obtain the results from the VA audiogram conducted on April 20, 2017 and associate it with the claims file. All attempts to obtain this evidence should be documented. If the audiogram is unavailable, a formal finding of unavailability should be sent to the Veteran and his representative and a copy should be associated with the record. ** ATTENTION: The Board is NOT requesting the April 20, 2017 VA audiology consultation notes, which have already been associated with the claims file. Rather, the Board is requesting the results of the audiogram that was conducted on April 20, 2017. 2. Then, readjudicate the issue on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.