Citation Nr: 21008665 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-35 220A DATE: February 17, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s hearing loss was manifested by no worse than level I hearing in the right ear and level I hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to September 1967. In May 2018, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (BVA) in November 2018 for additional development. It now returns for further appellate review. 1. Entitlement to a compensable rating for bilateral hearing loss The Veteran seeks a compensable rating for his service-connected bilateral hearing loss. See April 2015 Notice of Disagreement (NOD). Legal criteria Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). “Staged” ratings may are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of bilateral defective hearing range from noncompensable 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 measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability for bilateral service-connected defective hearing, the schedule establishes 11 auditory hearing acuity levels designated from Level I (for essentially normal hearing acuity) through Level XI (for profound deafness). 38 C.F.R. § 4.85, Tables VI and VII, DC 6100. 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 v. Principi, 3 Vet. App. 345 (1992). The evaluations derived from the schedule are intended to make allowance for improvement by hearing aids. 38 C.F.R. § 4.85, DC 6100. Exceptional patterns of hearing impairment are to be evaluated in accordance with the provisions of 38 C.F.R. § 4.86. That regulation states: (a) 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. (b) 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. 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 puretone audiometry test. 38 C.F.R. § 4.85(a). Relevant Facts and Analysis The Veteran filed a claim for service connection for bilateral hearing loss in September 2014. See September 2014 VA Form 21-526EZ, Fully Developed Claim. As such the relevant period on appeal is from September 8, 2014. The Veteran was afforded four VA audiological examinations in February 2015, March 2017, October 2019 and October 2020. During the February 2015 VA audiological evaluation, an audiogram showed puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 35 35 40 LEFT 20 15 10 35 50 See February 2015 VA Hearing Loss Disability Benefits Questionnaire (DBQ). The puretone threshold average was 35 decibels in the right ear and 28 decibels in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 98 in the left ear. Applying Table VI of the rating schedule, the results of the February 2015 audiogram revealed that the Veteran had Level I hearing in the right ear and Level I hearing in the left ear. Based on Table VII, these results correspond to a noncompensable rating. See 38 C.F.R. § 4.85. The Veteran underwent a second VA audiological examination in March 2017. The air conduction testing revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 35 30 35 40 LEFT 15 15 10 35 50 See February 2017 VA Hearing Loss and Tinnitus DBQ. The puretone threshold average was 35 decibels in the right ear and 28 decibels in the left ear. On the Maryland CNC word list speech discrimination test, the Veteran measured 92 percent for both ears. See id. Accordingly, the Veteran had Level I hearing in the right ear and Level I hearing in the left ear. Pursuant to the November 2018 Board remand, the Veteran was provided a third audiological VA examination in October 2019. The results of the examination show that the pure tone thresholds for the Veteran’s ears are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 30 35 35 45 LEFT 15 20 15 40 50 See October 2019 VA Hearing Loss and Tinnitus DBQ. The puretone threshold average was 36 decibels in the right ear and 31 decibels in the left ear. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 in the left ear. Applying Table VI of the rating schedule, the results of the October 2019 audiogram revealed that the Veteran had Level I hearing in the right ear and Level I hearing in the left ear. Based on Table VII, these results correspond to a noncompensable rating. See 38 C.F.R. § 4.85. The Veteran also underwent a VA audiological evaluation in October 2020. See October 2020 VA Hearing Loss DBQ. The Air conduction audiogram revealed, pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 50 45 60 LEFT 25 20 20 60 50 See October 2020 VA Hearing Loss and Tinnitus DBQ. The puretone threshold average was 49 decibels in the right ear and 38 decibels in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and of 96 in the left ear. Applying Table VI of the rating schedule, the results of the October 2020 audiogram revealed that the Veteran had Level I hearing in the right ear and Level I hearing in the left ear. Based on Table VII, these results correspond to a noncompensable rating. See 38 C.F.R. § 4.85. Upon review, the audiological examinations of record indicate findings corresponding to no higher than a noncompensable rating. There is no additional competent evidence in the record that would suggest that the Veteran’s hearing loss is severe enough to warrant a higher rating. The Board has no reason to doubt the validity of the VA audiometric testing in this case. Moreover, none of the VA examinations demonstrate an exceptional pattern of hearing impairment, as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1000, 2000, 3000, and 4000 Hertz, or a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a), (b). Additionally, there is no examiner certification that the use of speech discrimination testing was not appropriate due to factors such as language difficulties, inconsistent scores, etc. As such, there is no basis to alternatively rate this claim under Table VIA. See 38 C.F.R. § 4.85 (c). The Veteran’s subjective reports of hearing impairment have been considered. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, a review of his lay statements gives no indication of specific symptoms or a particular degree of impairment that would justify a compensable rating. Moreover, the Board is bound to apply the VA rating schedule, where the assignment of disability ratings for hearing impairment is derived from a mechanical formula. Thus, while laypersons are competent to report general symptoms such as hearing loss, the specific audiological findings from the audiological examinations from February 2015, February 2017, October 2019, and October 2020 are more probative of the severity of the Veteran’s hearing loss disability for VA purposes, where it relies upon specific medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007). In sum, the application of the rating schedule to the numeric designations assigned based on the VA audiological examination reports demonstrate that the appropriate rating for the Veteran’s bilateral hearing loss disability is noncompensable, throughout the appeal period. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision in this matter. The Veteran has not met the criteria for a compensable rating during any discrete period involved in this appeal. Therefore, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the claim for a compensable rating must be denied. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7 YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate Attorney 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.