Citation Nr: 21014734 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-45 009 DATE: March 15, 2021 ORDER An initial compensable evaluation for bilateral hearing loss is denied. FINDINGS OF FACT The Veteran’s bilateral hearing loss results in hearing acuity of no worse than Level II in the right ear and no worse than Level II in the left ear. CONCLUSIONS OF LAW The criteria for entitlement to 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 FINDINGS AND CONCLUSIONS The Veteran served honorably both in the U.S. Army from May 1967 to May 1969, including service in Vietnam, and in the U.S. Air Force form October 1981 to January 2000. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO)/Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in June 2018; a transcript of that hearing is of record. At the Veteran’s request, a VA audiological examination was administered in October 2019, but the results were invalidated by the audiologist. In September 2020, the Board remanded the Veteran’s claim for another VA hearing exam. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The following discussion addresses the Veteran's level of disability from the time the claim was re-opened in July 2009. Francisco, 7 Vet. App. 55; Hart, 21 Vet. App. 505. An increased rating for service-connected bilateral hearing loss The Veteran contends that his hearing loss merits a compensable rating, and an increased rating is warranted. In evaluating service-connected hearing loss, disability ratings are derived from mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. 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. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VI % of discrimination Puretone Threshold Average 0-41 42-49 50-57 58-65 66-73 74-81 82-89 90-97 98+ 92-100 I I I II II II III III IV 84-90 II II II III III III IV IV IV 76-82 III III IV IV IV V V V V 68-74 IV IV V V VI VI VII VII VII 60-66 V V VI VI VII VII VIII VIII VIII 52-58 VI VI VII VII VIII VIII VIII VIII IX 44-50 VII VII VIII VIII VIII IX IX IX X 36-42 VIII VIII VIII IX IX IX X X X 0-34 IX X XI XI XI XI XI XI XI Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 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. Table VIA Numeric designation of hearing impairment based only on puretone threshold average: 0-41 42-48 49-55 56-62 63-69 70-76 77-83 84-90 91-97 98-104 105+ I II III IV V VI VII VIII IX X XI The findings for each ear from either Table VI or Table VIA, are then applied to Table VII (Percentage Evaluations for Hearing Impairment) to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). Table VII Percentage evaluation for hearing impairment (diagnostic code 6100)   Poorer Ear XI 100*                     X 90 80                   IX 80 70 60                 VIII 70 60 50 50               VII 60 60 50 40 40             VI 50 50 40 40 30 30           V 40 40 40 30 30 20 20         IV 30 30 30 20 20 20 10 10 III 20 20 20 20 20 10 10 10 0     II 10 10 10 10 10 10 10 0 0 0   I 10 10 0 0 0 0 0 0 0 0 0   XI X IX VIII VII VI V IV III II I Since the Veteran re-opened the bilateral hearing loss claim in July 2009, he has undergone five audiological examinations. One VA exam was conducted in June 2010, another in December 2014 by QTC, another was done in July 2018 by a private examiner, another VA exam was done in October 2019, and the most recent VA exam was done in November 2020. Starting with the most recent examination, we find the following results from the November 2020 testing: The 2020 hearing examination puretone threshold levels were as follows:       1000   2000   3000   4000   Average RIGHT   25 35 45 45 37.50 LEFT   25 35 50 45 38.75 MD CNC Word recognition test results were 98 percent for the right ear and 100 percent for the left ear. Applying the 2020 VA exam results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100 for the Veteran’s bilateral hearing disability. An exceptional hearing pattern is not shown, and C.F.R. § 4.86 is not applicable. The October 2019 hearing examination puretone threshold levels were as follows:    HERTZ    500   1000   2000   3000   4000   Average RIGHT   CNT CNT CNT CNT CNT - LEFT   CNT CNT CNT CNT CNT - *CNT = (Could not be tested.) The 2019 test results were not valid for rating purposes for the following reasons according to the examiner: The Veteran's responses were inconsistent; speech reception thresholds (SRT) were not in agreement with puretone average (PTA). The Veteran was re-instructed on the task required. The Veteran's auditory thresholds improved by 10-20dB; however, SRT remained inconsistent with PTA. MD CNC Word recognition test results were also CNT for both right and left ears. The 2019 hearing test cannot be used to derive a disability rating. The July 2018 private hearing examination puretone threshold levels were as follows:       1000   2000   3000   4000   Average RIGHT   40 45 50 55 47.50 LEFT   50 55 50 70 56.25 MD CNC Word recognition test results are 88 percent for the right ear and 90 percent for the left ear. Applying the July 2018 private exam results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100 for the Veteran’s bilateral hearing disability. An exceptional hearing pattern is not shown, and C.F.R. § 4.86 is not applicable. The December 2014 VA contractor hearing examination puretone threshold levels were as follows:       1000   2000   3000   4000   Average RIGHT   55 50 70 90 66.25 LEFT   50 65 85 90 72.50 MD CNC Word recognition test results are 94 percent for the right ear and 100 percent for the left ear. Applying the 2014 VA exam results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100 for the Veteran’s bilateral hearing disability. An exceptional hearing pattern is not shown, and C.F.R. § 4.86 is not applicable. The June 2010 VA contract audiological examination puretone threshold levels were as follows:       1000   2000   3000   4000   Average RIGHT   30 30 35 40 33.75 LEFT   20 25 50 45 35.00 MD CNC Word recognition test results are 100 percent for the right ear and 96 percent for the left ear. Applying the 2010 exam results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100 for the Veteran’s bilateral hearing disability. An exceptional hearing pattern is not shown, and C.F.R. § 4.86 is not applicable. At the November 2020 VA hearing examination, the Veteran described the impact of his hearing loss disability as, “I have trouble hearing my wife if she's not in the same part of the room as I am. I will hear what she says but not get the whole thing." At the June 2018 Board hearing, his representative described communications at home between the Veteran and his wife as, “So, very often, he's required to come back and ask for you to repeat whatever you're asking or trying to tell him.” None of the five audiological examinations during the rating period indicate that a compensable rating is justified. Although the Veteran has a hearing loss that is connected to military and air service, a compensable rating is not warranted based on any evidence of record. The Board notes that the Veteran has argued that the examinations are not an accurate measure of his hearing loss as they test his hearing in a soundproof booth. However, the use of the controlled Maryland CNC speech discrimination test and the puretone threshold average determined by an audiometry test was established by regulation and published in the Federal Register on November 18, 1987. See 52 Fed. Reg. 44,117. Moreover, in Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007), the Court held that audiometric testing in a sound controlled room is an adequate testing ground for rating purposes. Additionally, the court has noted that to the extent to which an appellant’s complaints fall under the umbrella of ‘difficulty hearing’ they are contemplated by the rating criteria. Doucette, 28 Vet. App. At 369 (noting [T]he [schedular] rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment); see also Soto v. Wilkie,2020 U.S. App. Vet. Claims LEXIS 1877 (October 2020). Thus, although the Veteran generally argued the testing may have misrepresented his hearing loss, such argument does not indicate that the examiner failed to properly discharge his duties or otherwise renders the schedular criteria inadequate. See United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (“ ‘[I]n the absence of clear evidence to the contrary, courts presume that [Government agents] have properly discharged their official duties.’ “). Overall, the preponderance of the evidence is against the Veteran’s claim for a compensable rating for bilateral hearing loss. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.