Citation Nr: 21006100 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-04 776 DATE: February 3, 2021 ORDER Entitlement to a noninitial compensable rating for the Veteran’s service-connected bilateral hearing loss is denied. FINDING OF FACT During the appellate period, the Veteran’s service-connected bilateral hearing loss has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level II in the left ear. CONCLUSION OF LAW The criteria for entitlement to a noninitial compensable rating for the Veteran’s service-connected bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1974 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a July 2019 Travel Board hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. Neither the Veteran nor his attorney has raised any issues with the duty to notify, the duty to assist in obtaining documentary evidence, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Entitlement to a noninitial compensable rating for the Veteran’s service-connected bilateral hearing loss is denied. The Veteran is currently receiving a noncompensable rating for his service-connected bilateral hearing loss under 38 C.F.R.§ 4.85, Diagnostic Code 6100. The Veteran seeks a higher noninitial rating for the entire appellate period. Ratings for service-connected bilateral hearing loss range from noncompensable (0 percent) to 100 percent. These ratings are based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination testing together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. In evaluating service-connected bilateral hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Diagnostic Code 6100 provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment. The hearing impairment is established by a state-licensed audiologist including a controlled speech discrimination and the pure tone threshold average, which is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85. Table VII is used to determine the percentage rating by combining the Roman numeral designations for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Under 38 C.F.R. § 4.86(a), when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 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 is to be evaluated separately. See 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be evaluated to the next higher Roman numeral. See 38 C.F.R. § 4.86(b). Table VIA is also utilized when the audiologist certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. See 38 C.F.R. § 4.85(c). The Veteran was afforded a VA audiological examination in August 2014. The Veteran reported difficulty understanding speech, particularly when others spoke fast or with an accent, which made it difficult to follow directions, and he often had to request that others repeat themselves. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 35 65 85 LEFT 10 10 45 60 75 The average pure tone threshold in the Veteran’s right ear was 50 decibels, while the average pure tone threshold in the Veteran’s left ear was 48 decibels. The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained an 86 percent score in both ears. Word recognition scores were deemed appropriate for both ears. A pure tone average threshold of 50 decibels in the right ear with an 86 percent speech discrimination score equates to level II hearing acuity. 38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 48 decibels in the left ear with an 86 percent speech discrimination score equates to level II hearing acuity. Id. Level II hearing acuity in both ears equates to a noncompensable rating for hearing impairment. 38 C.F.R. § 4.85, Table VII. Pursuant to the Board’s November 2019 remand decision, the Veteran was afforded an additional VA audiological examination in February 2020. The Veteran reported that he had trouble hearing and understanding words, particularly if other noise was present in the room, and he had difficulty understanding his granddaughter’s high-pitched voice. He indicated that he watched faces frequently to aid in verbal comprehension. He reported wearing hearing aids. He often had to ask others to repeat themselves, and he used visual cues such as lipreading to enhance communication. 38 C.F.R. § 4.10; Martinak, supra. Audiometric testing was conducted, and the relevant results are summarized in the chart below, with pure tone threshold recorded in decibels. HERTZ 500 1000 2000 3000 4000 RIGHT 15 25 50 70 90 LEFT 10 15 55 60 90 The average pure tone threshold in the Veteran’s right ear was 59 decibels, while the average pure tone threshold in the Veteran’s left ear was 55 decibels. The audiologist also administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 4.85. The Veteran attained an 84 percent score in the right ear and a 92 percent score in the left ear. Word recognition scores were deemed appropriate for both ears. A pure tone average threshold of 59 decibels in the right ear with an 84 percent speech discrimination score equates to level III hearing acuity. 38 C.F.R. § 4.85, Table VI. A pure tone average threshold of 55 decibels in the left ear with a 92 percent speech discrimination score equates to level I hearing acuity. Id. Level III hearing acuity in the right ear and level I hearing acuity in the left ear equates to a noncompensable rating for hearing impairment. 38 C.F.R. § 4.85, Table VII. The results of the August 2014 and February 2020 VA examinations did not show an exceptional pattern of hearing loss and speech discrimination test results were deemed to be appropriate by the VA examiners, thus Table VIA is not for application. See 38 C.F.R. §§ 4.85(c), 4.86. In September 2020, the Board remanded the matter to obtain the audiogram results from a June 2018 VA audiology assessment and to seek clarification on whether that audiologist used the Maryland CNC word list when conducting speech discrimination testing. The RO has complied with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, the audiometric testing conducted at the June 2018 VA audiology visit is inadequate for rating purposes, as the audiologist used the CID W-22 word list instead of the Maryland CNC word list when she conducted speech discrimination testing. Accordingly, the Board cannot use these results to assess the degree of hearing impairment under Tables VI and VII. See 38 C.F.R. § 4.85. Additionally, the June 2018 audiogram did not show an exceptional pattern of hearing loss, and thus, Table VIA is not for application. See 38 C.F.R. § 4.86. While the Veteran’s VA treatment records contain occasional visits for hearing aid education and fitting, they are otherwise negative for audiometric findings during the period on appeal, aside from the June 2018 audiometric findings discussed above. Similarly, the private treatment records from the period on appeal also lack treatment for hearing loss or audiometric findings that may be used for rating purposes. At the July 2019 Board hearing, the Veteran’s attorney argued that the level II hearing acuity demonstrated in both ears at the August 2014 VA examination necessitated a 10 percent rating utilizing the rating tables in 38 C.F.R. § 4.85. This argument is legally incorrect, as level II hearing acuity in both ears equates to a noncompensable rating under Table VII. See 38 C.F.R. § 4.85. At the Board hearing, the Veteran also implicitly challenged the adequacy of his August 2014 VA examination, arguing that the use of a soundproof booth when testing his hearing did not result in an accurate representation of his disability. The United States Court of Appeals for Veterans Claims has explicitly upheld VA’s policy of requiring that hearing examinations be conducted in soundproof booths. See Martinak, 21 Vet. App. at 453-54. As in Martinak, the Veteran in this case has offered no expert medical opinion that testing in a soundproof booth produces inaccurate results, or that an alternate method exists and is use by the general medical community. The Board finds no merit in this argument. In the July 2014 Notice of Disagreement, the Veteran vaguely implied that the August 2014 VA examination was inadequate because it did not accurately reflect the severity of his disability, given that the speech discrimination testing was performed by a male with a deep voice, and his hearing is at its worst when attempting to hear high-pitched voices, such as those from children or females. The regulatory criteria simply require that VA examinations conducted for hearing loss claims must be performed by a state-licensed audiologist, regardless of sex, and this was done in the present case. Moreover, contrary to the Veteran’s assertion, a female audiologist conducted the speech discrimination test at the February 2020 VA examination and the results were similar or better than those observed at the August 2014 VA examination. The Board finds no merit in the Veteran’s argument. The Board finds the August 2014 and February 2020 VA audiological examinations are adequate for adjudicative purposes, as the VA examiners performed the objective testing necessary to appropriately rate the Veteran’s hearing loss disability under 38 C.F.R. § 4.85. The results of these VA examinations showed hearing loss to a noncompensable degree under the rating criteria, and the record contains no other audiological findings during the appellate period which support a higher noninitial disability rating. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran’s lay reports that he has difficulty hearing others, especially people speaking with an accent or high-pitched voices from women and children, and the television. See e.g. July 2019 Board hearing testimony; July 2014 Notice of Disagreement. He also indicated he could not discriminate sounds in a loud room and has to frequently ask others to repeat themselves. Id. 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, 3 Vet. App. at 349. Thus, the Board affords greater evidentiary weight to the objective medical evidence of record than the subjective lay statements of the Veteran in adjudicating this increased rating claim. 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). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a noninitial compensable disability rating for the Veteran’s service-connected bilateral hearing loss. In reaching the conclusion 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). The Veteran’s appeal seeking a noninitial compensable rating for his service-connected bilateral hearing loss is denied. The Board has considered whether an inferred claim of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised in conjunction with the increased rating claim adjudicated above; however, such a claim was not asserted by the Veteran and is not reasonably raised by the record. See Rice v. Shinseki¸22 Vet. App. 447, 453-54 (2009). Accordingly, the Board declines to take jurisdiction over an inferred TDIU claim under Rice. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.