Citation Nr: 21013928 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-03 222 DATE: March 10, 2021 ORDER Entitlement to a compensable initial rating for service-connected bilateral hearing loss is denied. FINDING OF FACT The Veteran’s service-connected bilateral hearing loss has been no worse than a Level I impairment of each 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 (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from October 1973 to February 1976. This case is before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to an initial compensable rating for service-connected bilateral hearing loss The Veteran currently receives a noncompensable rating for service-connected bilateral hearing loss. The Veteran contends that the March 2018 examiner was prejudiced against him because she did not check the box that his bilateral hearing loss is more likely than not service connected. He states that he is not questioning the examiner’s qualifications but would like a VA examination versus a contract examination. The Veteran received a rating decision awarding him service connection for bilateral hearing loss in August 2014, with an effective date on November 18, 2011, therefore, the appeal period begins on November 18, 2011. The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85. The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). 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). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. If the use of the word recognition score is not appropriate for the 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 use of Table VIa is warranted. The Veteran was afforded a VA examination in October 2013. Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG RIGHT 50 35 45 45 44 LEFT 45 35 45 35 40 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 98 in the left ear. The Board has considered the provisions of 38 C.F.R. § 4.86, which address exceptional patterns of hearing impairment, but the Veteran’s puretone thresholds during the appeal period summarized above do not conform to criteria listed in this regulation. The Veteran was afforded another VA contract examination in March 2018. Audiological evaluation revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 50 35 30 45 40 LEFT 50 35 35 40 40 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 98 in the left ear. The Board has considered the provisions of 38 C.F.R. § 4.86, which address exceptional patterns of hearing impairment, but the Veteran’s puretone thresholds during the appeal period summarized above do not conform to criteria listed in this regulation. The Veteran’s treatment records show that he was given examinations for hearing aids, and for their care. See December 2015 audiological note. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Veteran contends that the March 2018 VA contract examiner was prejudiced against him because she did not check the box that his bilateral hearing loss is more likely than not service connected. The Board notes that the lack of opinion as to service connection is noted, but it does not affect the adequacy of the examination. As the Veteran identified, the purpose of the examination is to determine if the Veteran is entitled to a higher rating, not to determine whether service connection is warranted. The Veteran also stated that he does not question the examiner’s qualifications but would like a VA examination, versus a contract examination. The Veteran also acknowledged that the VA contract examiner “retired from the VA.” The Veteran has not contended that his hearing loss has worsened, and there is no evidence within the record that the Veteran’s hearing loss has worsened since his last examination. Thus, the March 2018 VA contract examination is adequate for the purposes of determination of the claim. Snuffer v. Gober, 10 Vet. App. 400, 403, (1997). The Veteran has argued that his hearing loss is more severe than was reflected by his assigned ratings. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, the Veteran is competent to describe observable symptoms and impairments he experiences (e.g., diminished hearing and the use of hearing aids). However, as a lay person, he is unable to provide competent evidence as to the audiometry or measured level of his hearing loss to support a higher disability rating. The Board acknowledges the Veteran’s complaints regarding the impact of his service-connected bilateral hearing loss on his daily activities. However, the assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometry evaluations are made. The Board also notes that the rating criteria do not provide for a compensable rating based on the use of hearing aids. There is no doubt as to the proper evaluations to assign, and thus no doubt to resolve in favor of the claimant. Lendenmann, 3 Vet. App. 345; 38 C.F.R. § 4.85, Tables VI, VIA, VII, DC 6100. The Board is bound by applicable laws and regulations promulgated by the VA. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Consideration of factors wholly outside the schedular rating criteria would constitute error as a matter of law. Massey v. Brown, 7 Vet. App. 204 (1994); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). (Continued on the next page)   In conclusion, the preponderance of the most probative evidence weighs against entitlement to a compensable rating for bilateral hearing loss. In reaching this conclusion, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim, the doctrine does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, Associate 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.