Citation Nr: 21007165 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 10-18 281A DATE: February 8, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT At no time during the pendency of the claim is the Veteran’s hearing acuity shown to have been worse than level II in the right ear or level 1 in the left ear. CONCLUSION OF LAW A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.85 Diagnostic Code (Code) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1966 to June 1970. The matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 Department of Veterans Affairs rating decision. In February 2016, the Board remanded the case to the Regional Office (RO) to afford the Veteran a Travel Board hearing; in May 2016 he withdrew his hearing request. In March 2018, September 2019, and July 2020, the case was remanded for additional development. (Notably the Board remands had indicated that this appeal is from a March 2008 rating decision. Upon close review of the record, the Board finds that statements from the Veteran received in December 2008 are not a notice of disagreement with the March 2008 decision, but rather, constitute additional evidence received prior to the expiration of the appeal period. The RO reconsidered the claim in a December 2009 rating decision, which continued a 0 percent rating. The Veteran did not appeal the December 2009 rating decision, and it is final. Entitlement to a compensable rating for bilateral hearing loss Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ratings of hearing loss disability are derived from Table VII of 38 C.F.R. § 4.85 by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The numeric designations correspond to eleven auditory acuity levels, indicated by Roman numerals, where Level I denotes essentially normal acuity and Level XI denotes profound deafness. The assignment of the appropriate numeric level is based on the results of a controlled speech discrimination test (Maryland CNC test) in combination with the claimant’s average pure thresholds. The average threshold is obtained from puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz (Hz). 38 C.F.R. § 4.85. Rating specialists use either Table VI or VIa of 38 C.F.R. § 4.85 to determine the correct Roman numeral designation. Table VIa is employed when the use of speech discrimination tests is inappropriate due to language difficulties, inconsistent speech discrimination scores, etc., or where there is an exceptional pattern of hearing loss (as defined in 38 C.F.R. § 4.86). One such pattern occurs when the puretone threshold at each of the four specialized frequencies (1000, 2000, 3000, and 4000) is 55 decibels or more. Another pattern occurs when the puretone threshold at 1000 Hz is 30 decibels or less and the puretone threshold at 2000 Hz is 70 decibels or more. 38 C.F.R. § 4.86 (a)(b). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The instant claim for an increased rating was received in February 2013. Consequently, the relevant period for consideration of this claim begins in February 2012 (one year prior). See 38 C.F.R. § 3.400(o)(2)). On review of the pertinent records and application of the rating criteria to the evidence, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for the bilateral hearing loss disability. A March 2012 VA audiology progress note indicates that the Veteran’s hearing acuity had worsened from a July 2009 audiology examination (thresholds in the right ear worsened by approximately 15-25 decibels (dB) and in the left ear worsened by approximately 10-15 dB). On May 2013 VA audiological examination, the examiner noted that the testing conducted was inadequate for rating purposes. It was noted that the Veteran’s behaviors were inconsistent with bilateral non-organic hearing loss. The examiner advised further testing to obtain accurate thresholds. Private reports in August 2013, October 2014, and December 2015 show that the Veteran underwent audiological evaluations. In August 2013, it was noted that there was significant progression of the sensorineural hearing loss in comparison with a 2009 audiogram, particularly in reduction of discrimination from high 90 percent to 70 percent. However, it is not shown that speech discrimination testing was conducted using the Maryland CNC list, and the evaluations were noted to be conducted by a “licensed audiologist’s assistant.” Therefore the reports are inadequate for rating purposes. A May 2016 VA audiological progress note indicates the Veteran was seen for maintenance of hearing aids. The audiometric testing then conducted is inadequate for rating purposes, it consisted of puretone thresholds re-tested for the purpose of ordering updated amplification. On February 2020 VA audiological examination, audiometry revealed that puretone thresholds in decibels were: HERTZ 1000 2000 3000 4000 Avg Maryland CNC Speech discrimination RIGHT 25 40 50 70 46 88 LEFT 25 45 45 45 40 92 Regarding the impact of the hearing loss on the functioning, the Veteran stated he misses some of the words when he takes out his hearing aids (he mentioned he was on his fourth pair) due to the hearing loss and tinnitus. A VA audiology clinic progress note (later in February 2020) indicates the Veteran was seen with a request for new hearing aids. He indicated there had been no change in his hearing since his VA audiological examination earlier in the month. The audiometric testing then conducted is inadequate for rating purposes; it was noted that the Veteran’s puretone thresholds were re-tested for the purpose of hearing aid programming. The Veteran asserts that his hearing acuity has decreased and now warrants a compensable rating. Under governing regulations and the Caselaw cited above, determinations for hearing loss are based on results of audiometric testing. Although the Veteran is competent to observe and report his perception of a decline in hearing acuity, he is not competent to establish the level of severity of his hearing loss disability by his own lay observations. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As was noted above, various testing during the evaluation period was inadequate for rating purposes (either because not in compliance with 38 C.F.R. § 4.85, as on private testing in August 2013 (which was also conducted by an audiologist’s assistant, and not a licensed audiologist) and when the Veteran was seen for treatment purposes) or because the audiologist conducting the examination found the testing invalid due to inconsistent responses (as on May 2013 VA examination). There the findings on those occasions are not probative evidence in this matter. The only audiometry of record adequate for rating purposes was that on the VA audiological evaluation in February 2020. The findings then correlate to Level II hearing acuity in the right ear and Level I in the left ear, and under Table VII warrant a 0 percent rating. The examiner elicited from the Veteran, and accepted at face value, a description of the functional impact of his hearing loss (difficulty hearing, misses some words, with hearing aids removed). Such impairment is contemplated by the 0 percent rating that is currently assigned. Accordingly, a compensable rating for bilateral hearing loss is not warranted. The Board acknowledges the request of the Veteran’s representative in November 2020 “to set aside the rating schedule and to grant a compensable rating based on the symptoms that affects his daily living.” It appears, although it is not specifically so stated, that the representative is raising a claim for an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Consequently, the Board has considered whether this matter warrants referral for consideration of an extraschedular rating. The Board finds that comparison of the Veteran’s hearing loss disability and associated functional impairment with the rating criteria did not find that the rating criteria are inadequate to address the disability picture here presented. As was noted on the February 2020 audiological examination, the Veteran reported that he misses some words when he is not using his hearing aids. The Board finds no reason to question such reports, which are consistent with his hearing testimony. While he has also expressed, including in hearing that he has observed some worsening in his hearing acuity (during the pendency of this claim), it is clear from the February 2020 audiometry that the hearing loss has not risen to a compensable level. He has not alleged any symptoms/impairment other than difficulty hearing and understanding speech. Furthermore, the evidence does not reflect anything there is anything exceptional or unusual about his bilateral hearing loss disability picture. Accordingly, referral for extraschedular consideration is not warranted. The preponderance of the evidence is against this claim. Therefore, the appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chu, 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.