Citation Nr: 21011892 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-31 421 DATE: March 3, 2021 ORDER A compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the appeal period, the Veteran’s hearing loss was manifested by auditory acuity no worse than Level III in either ear, and the subjective complaints involving difficulty hearing in group conversations, in noisy areas and when watching TV, are reasonably described by the rating schedule. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 0 percent for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.3, 4.7, 4.85, 4.86 Diagnostic Code (DC) 6100 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1961 to July 1965. This matter is on appeal of a September 2014 rating decision. In February 2020, a hearing was held before the undersigned. A transcript of the hearing is of record. The Board remanded the appeal for further development in April 2020. The Veteran’s bilateral hearing loss is evaluated as 0 percent disabling under DC 6100. He seeks a higher disability rating and contends that his hearing loss makes it difficult for him to hear during group conversations, or in noisy places and that he frequently needs to ask people to repeat what they had said and needs to increase the volume of his TV. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Ratings for 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. 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. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of puretone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). 38 C.F.R. § 4.85. Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). 38 C.F.R. § 4.85(c) also provides, in substance, that Table VIa will be used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc.. On the VA audiological evaluation in August 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 30 50 65 LEFT 30 30 45 65 75   The average pure tone threshold was 43 for the right ear and 54 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 90 percent in the left ear. This level of impairment translates to Level I hearing in the right ear and Level II in the left ear under Table VI. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Puretone thresholds did not reflect an exceptional pattern of hearing impairment in either ear; therefore, rating under § 4.86 is not appropriate. During the Veteran’s October 2019 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 50 70 75 LEFT 40 40 50 80 80 The average pure tone threshold was 58 in the right ear and 63 in his left ear. Speech audiometry revealed speech recognition ability of 94 percent in both ears. This level of impairment translates to Level II hearing in both ears under Table VI. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Puretone thresholds did not reflect an exceptional pattern of hearing impairment in either ear; therefore, rating under § 4.86 is not appropriate.   In November 2019, VA administered another audiological evaluation for treatment purposes. The evaluation showed that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 50 65 80 LEFT 50 50 55 70 100 The average pure tone threshold was 59 for the right ear and 69 in the left ear. The examination did not utilize the Maryland CNC speech recognition test. The examiner noted that it was not adequate for rating purposes. 38 C.F.R. § 4.85(a) (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). Likewise, there is no medical certification of situations such as language difficulties or inconsistent speech discrimination scores; and no indication that the Veteran’s bilateral hearing loss disability met the criteria of an exceptional pattern of hearing loss. Therefore, evaluation under the alternate criteria in Table VIA, based only on puretone thresholds, is not appropriate. 38 C.F.R. §§ 4.85(c), 4.86. Although the Board cannot evaluate the Veteran’s hearing based on this evaluation, it notes that an accompanying November 2019 VA audio consult note indicates the test results showed a significant change in the Veteran’s hearing sensitivity as compared to his 2014 test results and that he was a good candidate for binaural amplification.   During the Veteran’s December 2020 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 35 50 75 80 LEFT 40 40 50 85 90 The average pure tone threshold was 60 in the right ear and 66 in his left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 86 percent in the left ear. This level of impairment translates to Level III hearing in both ears under Table VI. Applying these findings to 38 C.F.R. § 4.85, Table VII of the Rating Schedule results in a noncompensable evaluation. 38 C.F.R. § 4.85, Diagnostic Code 6100. Puretone thresholds did not reflect an exceptional pattern of hearing impairment in either ear; therefore, rating under § 4.86 is not appropriate. In addition to the medical evidence above, the Board has considered any lay evidence provided by the Veteran. In both his November 2014 notice of disagreement, and his June 2016 substantive appeal (VA Form 9), the Veteran sought a higher disability rating for his bilateral hearing loss disability. At both the October 2019 and December 2020 VA examinations, the Veteran reported difficulty hearing during group conversations or in noisy places and that he frequently needed to ask people to repeat what they had said and that he also needed to increase the volume of his TV. The Veteran is competent to report that he has difficulty hearing because this requires only personal knowledge as it comes through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify specific levels of his service-connected hearing loss disability according to the appropriate diagnostic code and relevant rating criteria. Additionally, the functional effects described by the Veteran are contemplated by the rating schedule for hearing impairments. 38 C.F.R. §§ 4.1, 4.10; see 64 Fed. Reg. 25200, 25203 (1999); 59 Fed. Reg. 17295. In this case, such competent evidence concerning the nature and extent of his disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s lay statements. See Cartwright v. Derwinski, 2 Vet. App. 24 (1991); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Moreover, the August 2014, October 2019 and December 2020 examiners considered the functional effects of the Veteran’s bilateral hearing loss during the examinations. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In conclusion, the Veteran has undergone hearing tests throughout the appeal period. All the VA examinations show that his hearing impairment has not risen to a compensable level as set forth in the rating schedule, and the functional effects of his hearing loss are contemplated by the rating schedule. 38 C.F.R. §§ 4.7, 4.85, 4.86; Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Accordingly, the Board finds that the preponderance of the evidence of record is against the Veteran’s claim for an increased, compensable disability rating for service-connected bilateral hearing loss, and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. J. Wells-Green 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.