Citation Nr: 21021138 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 18-45 200 DATE: April 9, 2021 ORDER An initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT For the period on appeal, the Veteran’s bilateral hearing loss has been manifested by no worse than Level I hearing impairment bilaterally. CONCLUSION OF LAW The criteria for an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to May 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In an August 2020 correspondence, the Veteran withdrew his request for a hearing. The Board notes that a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. See 38 C.F.R. § 20.702(e). As such, the Veteran properly withdrew the hearing. 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). 1. Entitlement to an increased rating for bilateral hearing loss The Veteran asserts that he is entitled to an initial compensable rating for his service-connected bilateral hearing loss. Disability considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran has been assigned a noncompensable rating for his bilateral hearing loss under 38 C.F.R. § 4.85, Diagnostic Code 6100. Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for hearing loss, which range from noncompensable to 100 percent, are based on an organic impairment of hearing acuity as demonstrated by the results of speech discrimination tests together with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (Hz). The degree of disability from service-connected hearing loss is rated based on 11 auditory acuity levels with Level I, representing essentially normal acuity, through level XI, representing profound deafness. See 38 C.F.R. § 4.85. Additionally, the schedule takes into account the effect of the Veteran’s hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). An alternative rating method may be used when the pure tone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz ) is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1,000 Hz and 70 decibels or more at 2,000 Hz. 38 C.F.R. § 4.86. VA will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa based on whichever results in the higher numeral. Id. In hearing loss rating cases, an examination 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. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). After a review of the evidence of record, the Board finds that an initial compensable disability rating for bilateral hearing loss is not warranted. Specifically, the VA examination from November 2010, reported that the Veteran had sensorineural hearing loss in both ears. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 30 25 35 45 33.75 LEFT 30 20 20 35 26.25 Speech audiometry revealed speech recognition ability of 94 percent bilaterally. Applying these values to Table VI, the Veteran exhibits Level I hearing loss in both ears. When applying these levels to Table VII, a noncompensable rating is for application. Therefore, based on this evidence, there is no clinical evidence to support the Veteran’s argument that he was entitled to an initial compensable disability rating in 2010. Next, the VA examination from November 2016, reported that the Veteran had sensorineural hearing loss in both ears. The Veteran specifically detailed that he has difficulty hearing his wife talk, and that he cannot hear at all without hearing aids. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 25 25 40 60 37.5 LEFT 20 30 45 65 40 Speech audiometry revealed speech recognition ability of 96 percent in both ears. Applying these values to Table VI, the Veteran exhibits Level I hearing loss bilaterally. When applying these levels to Table VII, a noncompensable rating is for application. Therefore, based on this evidence, there is no clinical evidence to support the Veteran’s argument that he was entitled to an initial compensable disability rating in November 2016. The Veteran also submitted a complaint private audiological examination in September 2018. On the authorized audiological evaluation, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg RIGHT 30 30 35 60 38.75 LEFT 25 25 40 60 37.5 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. Applying these values to Table VI, the Veteran exhibits Level I hearing loss bilaterally. When applying these levels to Table VII, a noncompensable rating is for application. Additionally, the Board acknowledges the private September 2013, October 2013, and September 2016 audiological examinations included in the Veteran’s medical records. However, these examinations could not be considered for VA compensation rating purposes as it is not clear that the examiners used the Maryland CNC speech discrimination test for the hearing ability scores. Therefore, based on this evidence, there is no clinical evidence to support the Veteran’s argument that he is entitled to an initial compensable disability rating as of September 2018. Accordingly, an initial compensable disability rating is not warranted on a schedular basis throughout the period on appeal. In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that his hearing loss was worse than the ratings he received. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his hearing loss according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes, as it includes symptoms related to hearing loss. See Mittleider v. West, 11 Vet. App. 181 (1998); DC 6100. As such, the Veteran’s symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Billinger, Associate Counsel