Citation Nr: 21008894 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-07 040A DATE: February 18, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the numeric designation of hearing impairment based on Pure-tone threshold average and speech discrimination is a Roman numeral I for both the left and right ears. 2. The Veteran did not demonstrate an exceptional pattern of hearing loss during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Coast Guard from May1998 to November 1999 and from September 2001 to October 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified before the undersigned Veterans Law Judge at a RO videoconference hearing in May 2019. A transcript of the hearing is part of the record. 1. Entitlement to a compensable rating for bilateral hearing loss. The Veteran is currently service-connected for bilateral hearing loss at 0 percent. See September 2009 Rating Decision Narrative. The Veteran contends that he is entitled to a compensable rating because he, “[S]teadfastly believes that the symptomatology associated with the service-connected bilateral hearing loss presents a greater degree of impairment than the currently assigned evaluation would indicate.” See February 2018 Appellate Brief, p.3. Increased Ratings Disability evaluations are determined by the application of facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate, staged ratings are appropriate in adjudicating increased ratings when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007). The period of consideration begins one year prior to the claim for increase and extends to the present. In the case of initial ratings, the period for consideration begins with the effective date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claim for an original or increased rating remains in controversy when less than the maximum available benefit is awarded). Any reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Rating Schedule includes Tables to determine evaluation percentages. Beginning with Table VI, a Roman numeral designation (from Levels I through XI) is associated with the Pure-tone threshold average for each ear. “Pure-tone threshold average,” as used in Table VI, is the sum of the Pure-tone thresholds at 1000, 2000, 3000 and 4000 Hertz (Hz), divided by four. Once the appropriate Roman numeral designation is found, by comparing “% of (speech) discrimination” on the vertical axis and “Pure-tone Threshold Average” on the horizontal axis, Table VII is used to assign a rating by comparing the Roman numeral designations, generated in Table VI, for the “better” and “poorer” ear. VA rating criteria for evaluating hearing loss disability provide ratings from 0 (non-compensable) to 100 percent. See 38 C.F.R. § 4.85. 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 Pure-tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). The claim for an increased rating for bilateral hearing loss was filed by the Veteran in January 2011. Therefore, the relevant temporal focus for evidence that is factually ascertainable regarding this disability includes evidence from January 2010. See 38 C.F.R. § 3.400(o)(2). Factual Background The Veteran’s VA treatment records reflect that he has been seen in the audiology clinic for hearing loss and is prescribed hearing aids. See March 2010 VA Audiology Note. The Veteran was provided with an audiology assessment at VA treatment in March 2010. Pure-tone threshold testing yielded the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 10 20 15 55 60 X 55 Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 10 15 5 55 50 X 50 The average Pure-tone threshold for the right ear, columns B – E, was 37.5 decibels (dB). The average Pure-tone threshold for the left ear, columns B – E, was 31.25 dB. Word list speech discrimination was not tested. The examiner concluded, “Bilateral sensorineural hearing loss…has never worn hearing aids…Pure-tone air conduction…normal hearing through 2000 Hz then a moderate / moderately severe sensorineural hearing loss…Assessment: Thresholds stable…borderline candidate for amplification.” See March 2010 VA Audiology Note. The Veteran was provided with a VA examination in March 2011. Pure-tone threshold testing yielded the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 10 20 15 60 60 X X Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 10 15 10 60 55 X X The average Pure-tone threshold for the right ear, columns B – E, was 38.75 dB. The average Pure-tone threshold for the left ear, columns B – E, was 35 dB. Word list speech recognition (Maryland CNC) was scored at 98 percent for the right ear and 96 percent for the left ear. The Veteran reported “No significant effects” of hearing loss on his occupation and “No” effects on usual daily activities. See March 2011 VA examination report. The Veteran was provided with an additional VA examination in October 2012. Pure-tone threshold testing yielded the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 15 25 15 60 60 50 55 Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 10 20 20 60 50 50 55 The average Pure-tone threshold for the right ear, columns B – E, was 38.75 dB. The average Pure-tone threshold for the left ear, columns B – E, was 37.5 dB. Word list speech recognition (Maryland CNC) was scored at 96 percent for the right ear and 96 percent for the left ear. The Veteran reported “No” impact on the ordinary conditions of daily life, including the ability to work. The Veteran did mention that it was becoming increasingly difficult to hear in noise, including the t.v. See October 2012 VA examination report. A private examination for the Veteran noted, “[B]ilateral high-frequency loss moderately severe at (8000 Hertz), stable compared with April 12 audiogram.” See May 2013 Associates in Otolaryngology Progress Note. The Veteran was provided with an audiology assessment at VA treatment in October 2015. While no Pure-tone frequency data is available in the record, the examiner stated, “Pure-tone audiometrics revealed normal hearing 250 – 2000 Hz with a moderate / moderately severe sensorineural loss 3000 – 8000 Hz. Loss is stable compared to testing conducted in 2012. (Speech) discrimination ability was 88% for the right ear and 92% for the left.” See October 2015 VA Audiology Evaluation. The Veteran was provided with an additional audiology assessment at VA treatment in November 2017. Pure-tone threshold testing yielded the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 10 15 20 60 60 50 60 Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 15 15 10 60 55 50 70 The average Pure-tone threshold for the right ear, columns B – E, was 38.75 dB. The average Pure-tone threshold for the left ear, columns B – E, was 35 dB. Word list speech recognition (Maryland CNC) was scored as “good – Stable” for the right ear and “excellent – Stable” for the left ear. The Veteran reported “difficulty understanding speech in background noise, at a distance, without visual cues, over the telephone” and “listens to the television with volume increased.” The examiner concluded, “Audiogram: Stable…Right: normal through 2000 Hz, moderately severe sensorineural hearing loss at 3000 – 8000 Hz…Left: normal through 2000 Hz, moderately severe to severe sensorineural hearing loss at 3000 – 8000 Hz.” See November 2017 VA Audiology Assessment. A private examination conducted at the request of the Veteran documented “Excellent” speech discrimination and “moderate to severe (sensorineural hearing loss).” The results were insufficient for determining hearing loss under the criteria contained in 38 C.F.R. § 3.385. See February 2019 Associates in Otolaryngology Adult Audiological Evaluation. Finally, the Veteran was provided with a VA examination in December 2019. Pure-tone threshold testing yielded the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 30 25 40 65 65 60 65 Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 25 25 30 60 60 65 80 The average Pure-tone threshold for the right ear, columns B – E, was 48.75 dB. The average Pure-tone threshold for the left ear, columns B – E, was 43.75 dB. The Maryland CNC word list speech discrimination scores, appropriate for use with this Veteran, were 96 percent for the right ear and 96 percent for the left ear. The Veteran reported that he, “Can’t hear, and his significant other (is) frustrated.” He went on to state, “(Can’t) hear sirens until he can see the lights, has walked out in front of cars, phone is turned up on speaker” and “has to be face to face.” See December 2019 VA examination report. Analysis First, the Board notes that audiological assessments completed at VA treatment in March 2010 and November 2017 cannot be evaluated for hearing loss purposes, because the assessments do not contain speech discrimination scores. Table VIA (Numeric Designation of Hearing Impairment Based Only on Pure-tone Threshold Average) is to be used only (emphasis added) when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86, exceptional hearing impairment. See 38 C.F.R. § 4.85(c). Because there is no such certification from the March 2010 and November 2017 examiners, Table VIA cannot be used to evaluate the data. Further, as discussed in more detail below, the Veteran does not meet the criteria for exceptional hearing loss under 38 C.F.R. § 4.86 for an exception to evaluate the March 2010 and November 2017 data using Table VIA. Evaluating the VA audiological test results cited above, the Board finds that when the Pure-tone threshold averages and the speech recognition scores from the VA examinations in March 2011, October 2012, and December 2019 are applied to Table VI (Numeric Designation of Hearing Impairment Based on Pure-tone Threshold Average and Speech Discrimination), the numeric designation of hearing impairment for both the right and left ears is Roman numeral I for all tests. The only difference between the March 2011, October 2012, and December 2019 examinations is the placement of Pure-tone threshold averages for December 2019 in the “42 – 49 (dB)” column, which also yields a designation of Roman numeral I. See 38 C.F.R. § 4.85, Table VI. The designated numeral “I” represents both the “better ear” and “poorer ear” from the March 2011, October 2012, and December 2019 VA examinations. When applied to Table VII (Percentage Evaluation for Hearing Impairment – Diagnostic Code 6100), the evaluation for hearing impairment is 0 percent, the point at which both designated numerals intersect along the bottom row. See 38 C.F.R. § 4.85, Table VII. The result does not change when the data from each of the March 2011, October 2012, and December 2019 VA examinations is applied to the applicable rating Tables. Therefore, a compensable rating is not warranted. See 38 C.F.R. § 4.85, DC 6100. It should be noted that “Review for entitlement to special monthly compensation under 38 C.F.R. § 3.350” is appreciable for numerical designations of “XI” from Table VI. See 38 C.F.R. § 4.85, Table VII. Since the Veteran does not meet the Pure-tone threshold requirements of 55 decibels or more at each (emphasis added) of the specified frequencies (1000, 2000, 3000, 4000 Hertz) or 30 decibels or less at 1000 Hertz and (emphasis added) 70 decibels or more at 2000 Hertz, the provisions for exceptional hearing impairment do not apply. See 38 C.F.R. § 4.86. Consideration has been given to the Veteran’s competent and credible statements regarding his hearing difficulties, however, the evaluation of hearing loss is reached by a mechanical application of the rating schedule, to the numeric designations assigned, after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Further, 38 C.F.R. § 4.85 sets out the percentage ratings for exact numerical levels of impairment required for a compensable evaluation of hearing loss, which requires specific testing. In reviewing the record, the Board finds that the Veteran’s degree of bilateral hearing loss did not meet the standards for a compensable evaluation at any point. Therefore, his claim for a compensable rating for bilateral hearing loss must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Additionally, the Veteran does not contend, nor does the evidence show that he has symptoms associated with his service-connected disorder that are not contemplated under 38 C.F.R. §4.85. Finally, the Veteran has not contended, nor does the evidence demonstrate, that this disability or his other service-connected disability renders him unemployable. The record reflects that the Veteran is retired after 28 years in the Coast Guard and 40 years in law enforcement. See July 2009 service personnel record and November 2017 VA Audiology Assessment. In July 2014, the Veteran was employed as a locksmith. See July 2014 Email from Veteran to VA. As of September 2019, the Veteran was employed at “Worcester Polytech.” See September 2019 VA Primary Care Note. The issue of a total rating based on unemployability (TDIU) has not been raised at any time during this appeal. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.