Citation Nr: 21007521 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-31 399 DATE: February 9, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT During the appeal period, the Veteran has, at worst, Level I hearing acuity for the right ear and Level II for the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from August 1984 to September 1986. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. The transcript is of record. In December 2019, the Board remanded the issue at hand in order to provide an adequate VA examination. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. 38 C.F.R. § 4.85(a). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I for essentially normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VII is then used to determine the percentage evaluation by intersecting the Roman numeral designations (from Table VI) 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. Exceptional patterns of hearing impairment are evaluated under the provisions of 38 C.F.R. § 4.86. When the puretone 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 will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone 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 elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to a compensable rating for bilateral hearing loss The Veteran is currently in receipt of a noncompensable rating for service-connected bilateral hearing loss pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran contends that his service-connected hearing loss disability should be rated higher than the noncompensable evaluation currently assigned to him. During his December 2019 Board hearing, the Veteran stated that without his hearing aids, he has a hard time hearing. The Veteran expressed that even while wearing his hearing aids, he sometimes cannot hear the words correctly. The Veteran, however, also indicated that his hearing aids have never been upgraded and that he has never contacted VA audiology to upgrade or adjust his hearing aids. The Veteran testified that he cannot watch television without his hearing aids. The Veteran indicated that without his hearing aids, he would have to turn the volume up high in order to understand. The Veteran stated that when he talks on the phone, he has to mute the television. The Veteran expressed that he has trouble hearing his GPS while driving. The Veteran testified that he sometimes requires others to repeat themselves in conversations. The Veteran indicated that he cannot focus on two things, such as watching television and talking to someone. The Veteran indicated that he has trouble hearing everyone at the dinner table or at restaurants. In August 2015, the Veteran was afforded a VA audiological examination. However, the VA examiner could not test the Veteran’s pure tone thresholds. The VA examiner stated that he was unable to obtain reliable results. The VA examiner recommended a re-test at a later date. The VA examiner also could not test the Veteran for a word recognition score. The VA examiner stated that the use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate. The Veteran submitted a private audiogram from HearUSA, dated in January 2016. The examiner noted that the problems associated with the Veteran’s hearing included having trouble hearing/understanding: one on one conversations, TV/entertainment, small groups, social settings present uncomfortable listening situations, background noise, communication difficulties, and environmental sounds. The examiner also noted that others have suggested hearing difficulty. The examiner noted that the Veteran’s speech recognition scores were 72 percent for the right ear, and 64 percent for the left ear. Although the Veteran submitted a private audiogram, the report does not contain evidence of Maryland CNC testing, as required by regulations; thus it is inadequate. 38 C.F.R. § 4.85. The Veteran was afforded a VA examination in January 2020. The examiner reported that the Veteran’s hearing loss impacted the Veteran’s ordinary conditions of daily life, including the ability to work. The examiner noted that the Veteran has trouble understanding some words, hearing the television and phone, and the Veteran requires others to repeat themselves. Audiological testing at the time revealed pure tone thresholds in decibels for the right ear at 1000, 2000, 3000 and 4000 Hertz were 25, 60, 60, and 55 respectively. Pure tone thresholds in decibels for the left ear at 1000, 2000, 3000 and 4000 Hertz were 20, 65, 70, and 65 respectively. Adding the sums of the Hertz levels from 1000-4000 and dividing by four, results in an average pure tone threshold of 50 Hertz in the right ear, and 55 Hertz in the left ear. The Maryland CNC controlled speech discrimination test revealed speech recognition of 94 percent in the right ear and 88 percent in the left ear. Applying the average pure tone thresholds and speech recognition abilities into Table VI reveals the highest numeric designation of hearing impairment is Level I in the right ear and Level II in the left ear. 38 C.F.R. § 4.85. Entering the category designation of Level I for the right ear and Level II for the left ear, results in a zero percent evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85, Table VII. The Board notes that because the pure tone thresholds at each of the four specified frequencies are not 55 decibels or more in either ear, the alternative table, Table VIA, does not apply. 38 C.F.R. § 4.86(a). Based on the above medical and lay evidence of record, the Board finds that a compensable rating for bilateral hearing loss is not warranted at any time during the period on appeal. In making this finding, the Board is sympathetic to the Veteran’s contention that he has difficulty hearing speech, understanding others, and hearing his GPS and television, due to his hearing loss disability. However, the Board must consider the Veteran’s description of his service-connected disability in conjunction with the clinical evidence of record and the pertinent rating criteria. In this regard, the Board emphasizes that disability ratings are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology results of record. As described above, the January 2020 VA audiological examination report, which provides the only adequate audiometric testing of record, when applied to the rating criteria, show that the Veteran is not eligible for a compensable rating at any time during the appellate period. The Board notes that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the January 2020 VA examiner noted that the Veteran reported hearing difficulty which affects his ordinary conditions of daily life. However, the Board finds that such functional impairment has been appropriately considered but the overall evidence, as previously discussed, fails to support the assignment of an increased rating. Furthermore, the Veteran’s reported functional limitations are manifestations of decreased hearing acuity, which is already contemplated by the rating criteria for hearing loss. A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology, including his difficulty hearing and understanding speech in his everyday life. The Board notes that this conclusion is consistent with the United States Court of Appeals for Veterans Claims’ holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (“[W]hen a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.”). Finally, the Board acknowledges that by filing a claim for an increased rating, the Veteran has asserted a belief that his hearing loss is worse than reflected by his currently-assigned noncompensable rating. In this regard. the Veteran is competent to report symptoms of disability, such as difficulty hearing speech. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating under the rating schedule for hearing loss, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, based on the findings from the January 2020 examination, the only adequate audiology examination of record, the Board finds that entitlement to a compensable rating for bilateral hearing loss is not warranted. As the evidence of record preponderates against the claim, the benefit-of-the-doubt doctrine is not for application, and the Veteran’s appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. 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.