Citation Nr: 21015525 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-05 188 DATE: March 17, 2021 ORDER Entitlement to a compensable rating for service-connected bilateral hearing loss prior to November 19, 2020 is denied. FINDING OF FACT Prior to November 19, 2020, the Veteran’s service-connected bilateral hearing loss was manifested by hearing acuity of no higher than Level I in the right ear and no higher than Level I in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for service-connected bilateral hearing loss prior to November 19, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty service from June 1963 to July 1966. This matter is on appeal from a June 2015 rating decision. The Veteran was afforded a November 2018 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board remanded this appeal in April 2019 for additional development. During the pendency of the appeal a November 2020 rating decision increased the evaluation of the Veteran’s bilateral hearing loss to 100 percent from November 19, 2020. As the Veteran is in receipt of the maximum schedular rating for bilateral hearing loss from November 19, 2020, that period is not before the Board. As the Veteran has not indicated satisfaction with the increased evaluation, the Board finds the issue of entitlement to an increased rating for the Veteran’s bilateral hearing loss remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the Board has recharacterized the issues on appeal as entitlement to a compensable rating for the Veteran’s bilateral hearing loss prior to November 19, 2020 and in excess of 100 percent since November 19, 2020. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Where 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Any reasonable doubt will be resolved in favor of granting the Veteran’s claim. 38 U.S.C. § 5107 (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. Bilateral hearing loss The Veteran is currently service connected for bilateral hearing loss evaluated at a noncompensable evaluation prior to November 19, 2020 and then at 100 percent since November 19, 2020 under diagnostic 6100. 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 speech discrimination test (Maryland CNC) together with the average hearing threshold level measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from service-connected defective hearing, the rating 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, Diagnostic Code 6100 (2018). 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). An exceptional pattern of hearing impairment occurs when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 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. 38 C.F.R. § 4.86(a). Further, when the average puretone 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(b). The Veteran was afforded a May 2015 VA examination. The Veteran reported that his wife complains that he doesn’t hear well, and that sound and voices seemed muffled at times. Upon testing, the Veteran’s pure tone threshold levels in decibels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 30 35 50 55 43 LEFT 20 45 65 60 48 Speech recognition scores based on the Maryland CNC Test was 98 percent for the right ear and 94 percent for the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 43 decibels combined with the right ear speech discrimination of 98 percent results in a Roman numeral designation of I, and the left ear pure tone threshold average of 48 decibels when combined with the left ear speech recognition of 94 percent results in a Roman numeral designation of I. Application of these findings to Table VII corresponds to a noncompensable rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. In a June 2015 notice of disagreement (NOD), the Veteran requested a 30 percent evaluation for his bilateral hearing loss and a 30 percent for “having to wear hearing aids.” The Veteran stated that he has to wear hearing aids as a result of the constant noise in service and that the VA examiner told him that he needed to wear them because of moderate to severe hearing loss. Review of the medical treatment record shows the Veteran’s report of hearing loss and difficulties using hearing aids because of issues wearing them. In a February 2016 Form 9 statement, the Veteran disagreed with the evaluation, stating that a “0 percent rate of evaluation shows there is no problem with my hearing – when in fact there is great problem – because I have problems hearing people or TV with hearing aids… the speech factor will be better with headsets or hearing aids, rather than not…” The Veteran was afforded a June 2017 VA examination but no puretone thresholds or CNC scores were measured. At the Veteran’s November 2018 hearing, the Veteran testified that when he goes out to meet his friend who also has hearing problems, they both end up “screaming at each other … [the friend] can’t hear me and I can’t hear him half of the time.” The Veteran stated that he cannot hear others who speak to him while he is watching television or when his wife “hollers at me.” The Veteran stated that it was progressively getting worse and that he had issues interacting with other people on a normal basis because he cannot hear what is being said to him. The Veteran noted that he has hearing aids but could only use them “if I can get them in. If not, I got to wait for my wife to get them to put it in.” The Veteran stated that sometimes he goes with hearing aids if his wife doesn’t get up in time to put his hearing aids in. The Veteran stated that he retired in 2010 from his job as a custodia for a school system but noted that his hearing problems did not cause any problems at his job unless he was running a vacuum cleaner. The Veteran stated that he does not play the radio while driving and “shut it off because it distracts me” or keeps it low. On November 19, 2020 the Veteran was afforded a VA examination. The Veteran reported that he cannot hear and need to use closed captions and hearing aids, and that other people need to yell at him in order for him to hear. Upon testing, the Veteran’s pure tone threshold levels in decibels were measured as followed: HERTZ 1000 2000 3000 4000 AVG RIGHT 80 90 95 105+ 92.5 LEFT 75 95 95 100 91.25 Speech recognition scores based on the Maryland CNC Test was 26 percent for the right ear and 24 percent for the left ear. Applying the air conduction results to the applicable criteria, under Table VI, the right ear pure tone threshold average of 92.5 decibels combined with the right ear speech discrimination of 26 percent results in a Roman numeral designation of XI, and the left ear pure tone threshold average of 91.25 decibels when combined with the left ear speech recognition of 24 percent results in a Roman numeral designation of XI. Application of these findings to Table VII corresponds to a 100 percent rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. After review of the record, the Board finds the preponderance of the evidence is against a finding for a compensable evaluation for the Veteran’s bilateral hearing loss prior to November 19, 2020. Based on application of VA’s method for evaluating hearing loss and the May 2015 VA examination testing results, the Board finds that the findings made in the examination do not provide a basis for awarding a compensable evaluation for bilateral hearing loss. The June 2017 VA examination did not record or measure any puretone or CNC scores. Aside from the May 2015 VA examination, there are no other audiometric testing results which comply with the requirements of 38 C.F.R. § 4.85 for rating purposes for the period prior to November 19, 2020. Although the Veteran has indicated that his hearing is worse than the criteria associated with noncompensable evaluation for the period prior to November 19, 2020, the rating criteria for hearing loss, as addressed above, requires the mechanical application of rating criteria to objectively-obtained audiometric testing results. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The noncompensable evaluation for the period prior to November 19, 2020 is reflected by the evidence of record for the period and there is no indication that the findings on the May 2015 VA audiological examinations are inadequate. Accordingly, the evidence is not sufficient to demonstrate that the Veteran’s bilateral hearing loss meets the criteria for a compensable evaluation for the period prior to November 19, 2020. 38 C.F.R. § 4.85. The Board has considered the Veteran’s statements regarding the severity of the Veteran’s bilateral hearing loss. However, as a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner’s opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiner’s findings. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As such, the Board finds the preponderance of the evidence is against a compensable evaluation for bilateral hearing loss for the period prior to November 19, 2020. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.