Citation Nr: 21015076 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-35 125A DATE: March 16, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s bilateral hearing loss has been manifested by hearing acuity of no worse than Level II in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1—4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from June 1986 to January 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The claim was previously remanded by the Board in September 2018 for additional development. Specifically, the Board instructed that VA was to contact a private audiologist to request clarification of private audiograms and to afford the Veteran an VA audiological evaluation. Such an audiological evaluation was conducted in October 2020. A June 2020 letter to the Veteran to request authorization for the private providers in order to clarify the private audiograms; the Veteran completed the appropriate release form and VA contacted the private provider for clarification. However, a June 2020 Report of Contact indicates that the private provider was unable to provide clarification as the records had been destroyed. In October 2020, the agency of original jurisdiction (AOJ) contacted the Veteran regarding clarification of the second private audiogram, which was form a different provider. In an October 2020 Report of General Information, the Veteran indicated that he did not recall receiving audiological care from that provider. The Board therefore concludes that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. An initial compensable rating for bilateral hearing loss is denied. The Veteran contends that he is entitled to a higher rating because hearing interferes with his ability to work and he is unable to hear in situations where there is background noise. Disability ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An August 2012 VA examination reveals that the Veteran reported his wife has to repeat herself often and that background noise gives him trouble. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 0 10 25 60 24 100 LEFT 0 5 25 55 21 100 Applying the 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 resulting 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 noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An October 2020 VA examination reveals that the Veteran reported it is hard to understand numbers and letters of words especially high pitch voices. He stated difficulty understanding what is being said when background noise is present. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 10 15 70 80 44 88 LEFT 5 5 25 65 25 96 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Veteran also provided a private audiological evaluation dated in March 2012 by Dr. D. However, the examiner did not address whether the he used Maryland CNC for evaluation. As noted above, the Board remanded the claim in September 2018 for additional development to include requesting whether Maryland CNC was used by the private examiner. A June 2020 Report of General Information, the AOJ communicated with Dr. D.’s office and found that records have been destroyed as the retention period is seven years. Furthermore, he has not been seen since 2012 and the office personnel did not have access to records prior to 2018 when they got a new computer system. The Veteran also provided a November 2015 private audiological evaluation. As this evaluation was not by Dr. D., the AOJ contacted the Veteran in October 2020 to identify the private treatment provider. The Veteran stated he did not recall receipt of audiological care or testing from any other provider over the years and that the records from Dr. D. would encompass all audiologic tests he has received. As such, no authorization was received, and no additional information was obtained from the November 2015 private examiner. As the speech recognition scores in the private audiological evaluations are not shown to be Maryland CNC, then the audiometric evaluations are not adequate for rating purposes under § 4.85(a). Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing with background noise. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board notes the arguments of the Veteran’s attorney that an extraschedular rating is warranted in this case as the condition markedly interferes with the Veteran’s ability to work. Specifically, the Veteran’s attorney argues that the Veteran’s hearing loss impairs his ability to effectively communicate with co-workers and clients. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Schedule for that disability. See Id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for a determination of whether the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the record does not establish that the rating criteria are inadequate. The medical findings of worsening hearing impairment do not suggest that the effect of the Veteran's hearing impairment disability creates such an exceptional circumstance as to render the schedular criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484. The evaluation of hearing impairment requires a licensed audiologist to conduct the evaluation, and must include a controlled speech discrimination test and a pure tone audiometry test conducted without the use of hearing aids. See 38 C.F.R. § 4.85(a). The Veteran's contention that audiometric testing did not account for his inability to hear in situations where there is background noise does not reflect an exceptional disability picture that renders the criteria inadequate. The criteria reflect worsening hearing impairment based on pure tone threshold averages and speech discrimination percentages that result in increased disability evaluations. Indeed, the Court has explicitly addressed whether the symptom of trouble conversing with others is encompassed in the schedular rating criteria for hearing loss, and has found that it is. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). In view of the circumstances, the Board finds that the rating schedule is adequate and further analysis with regards to a referral for extraschedular consideration is not needed under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). This argument is therefore without merit. Consideration has been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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, supra. The Board is also cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran reported that he was currently teleworking and that he worked for a non-partisan advocacy organization in an August 2020 VA treatment note. As such, Rice is inapplicable in this case. (Continued on the next page)   Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.