Citation Nr: 21009995 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-38 928 DATE: February 23, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence indicates the Veteran’s bilateral hearing loss disability has been manifested by loss of hearing acuity measured at no worse than Level II hearing, bilaterally. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from April 1966 to April 1970. This matter is on appeal from a November 2014 rating decision. In July 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. In January 2019 and August 2020, this matter was remanded by the Board for further development. The development requested having been completed, this case is now appropriate for appellate review. A January 2021 Report of General Information reflects the Veteran’s request for a 30-day extension to submit new information. However, to date none has been submitted. Increased Rating Claim Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends that his service-connected bilateral hearing loss is more severe than his noncompensable (zero percent) rating would indicate. Disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are made. Bruce v. West, 11 Vet. App. 405 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). The regulations set forth eleven auditory acuity levels, designated from Roman numerals I to XI, in escalating order of hearing impairment. 38 C.F.R. § 4.85. The appropriate auditory acuity level is determined based on a combination of the percentage of speech discrimination and the puretone threshold average. Additional considerations apply when exceptional patterns of hearing loss are demonstrated, which are defined as either a) puretone averages of 55 or greater at 1000, 2000, 3000, and 4000 Hertz, or; b) a puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (a). Once an acuity level is established for each ear, Table VII, Percentage Evaluations for Hearing Impairment, is used to determine the appropriate disability evaluation. The appropriate rating is determined based on a combination of the levels of hearing impairment established for each ear. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four aforementioned frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85 (b). Table VIA, which assigns a Roman numeral designation based solely on the puretone threshold average, is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc. 38 C.F.R. § 4.85 (c). In addition, where audiometric testing reveals an exceptional pattern of hearing impairment, Roman numerical designations may be determined under 38 C.F.R. § 4.85 (h), Table VIA. Pursuant to 38 C.F.R. § 4.86 , an exceptional pattern of hearing impairment exists where audiometric testing reveals either: (1) pure tone thresholds of 55 decibels or more at each of the frequencies at 1000, 2000, 3000, and 4000 Hertz; or (2) a pure tone threshold at 30 decibels or less at 1000 Hertz and 70 decibels or greater at 2000 Hertz. 38 C.F.R. §§ 4.85 (h); 4.86. After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85 (e). In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak, 21 Vet. App. at 455. The Court also noted, however, that even if an audiologist's description of the functional effects of the veteran's hearing disability was somehow defective, the veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. Id. Turning to the evidence, on July 2014 VA audio Disability Benefits Questionnaire (DBQ) examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 30, 25, 50, and 55 decibels; the average puretone decibel loss was 40 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 30, 60 and 65 decibels; the average puretone decibel loss was 46 decibels. The CNC word list speech recognition score was 94%, bilaterally. The audiologist diagnosed bilateral sensorineural hearing loss which she opined impacted the ordinary conditions of daily life, including the ability to work. Under Table VI, these audiometric findings correspond to Level I hearing loss, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran reported difficulty hearing on the telephone. In an August 2014 statement the Veteran challenged the adequacy of the examination and claimed that the examiner was “prejudiced” and requested re-examination. He explained to her that he got frustrated when talking to people, because he was unable to hear them and missed words. VA treatment records dated in July 2016 report show that the Veteran requested hearing aids and complained of worsening hearing. In December 2016, he requested an audiology consult. In July 2018, the Veteran testified that the VA examiner was rude and expressed his overall displeasure with the examination. He also testified that he had difficulty hearing others 3 or 4 yards away. Pursuant to an August 2020 remand, on December 2020 VA hearing loss and tinnitus DBQ examination, puretone thresholds for the right ear, in decibels, at 1000, 2000, 3000, and 4000 Hz were as follows: 30, 35, 50, and 55 decibels; the average puretone decibel loss was 43 decibels. The pure tone thresholds for the left ear, in decibels, at 1000, 2000, 3000, and 4000 Hz as follows: 30, 35, 60, and 65 decibels; the average puretone decibel loss was 48 decibels. The CNC word list speech recognition score was 88% in the right ear and 86% in the left ear. Under Table VI, these audiometric findings correspond to Level II hearing loss, bilaterally. Those Roman numerical designations equate to a noncompensable disability rating under Table VII. Regarding the functional impact of the bilateral hearing loss disability, the Veteran reported difficulty concentrating especially when in the presence of background noise. The audiologist opined that the bilateral hearing loss disability impacted the ordinary conditions of daily life, including the ability to work. Applying the relevant rating criteria, the Board notes that a compensable rating, for the Veteran’s bilateral hearing loss is not warranted. The Board is mindful that an audiologist must provide a description of the functional effects caused by a hearing loss disability. Martinak v. Nicholson, 21 Vet. App. 447 (2007). On July 2014 and December 2020 VA examination, the Veteran complained of difficulty understanding speech and hearing on the telephone. The Board finds these comments are sufficient to comply with the applicable VA policies. Id. In this regard, the Board notes that the Veteran challenged the adequacy of the VA examinations and professionalism of the examiners, including as documented in a January 2021 Report of General Information. However, after a thorough review of the examinations the Board finds that they were based on a review of the Veteran’s symptoms and complaints and discussed his disability in relation to the pertinent rating criteria. Accordingly, the VA examinations are adequate for adjudication purposes. See, Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed private audiology examinations dated in December 2013, September 2017, and March 2018. However, it does not appear that these examinations utilized a Maryland CNC Word List, as required. 38 C.F.R. § 4.85(a). Accordingly, these examinations are inadequate for rating purposes and cannot provide a basis for a compensable evaluation. Regarding the March 2018 private examination, the January 2019 Board remand instructed the AOJ to contact the March 2018 audiologist to clarify whether the examination included the Maryland CNC. The AOJ made multiple unsuccessful attempts to obtain clarification from the private audiologist. The Board notes that the Veteran is competent to report complaints such as difficulty hearing as this observation comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously. However, the Veteran is not competent to identify a specific level of disability of his bilateral hearing loss according to the appropriate diagnostic code. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s bilateral hearing loss has been provided by the examining VA audiologists who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly addresses the criteria under which this disability is evaluated. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.