Citation Nr: 21021713 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-26 231 DATE: April 13, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The probative medical evidence of record demonstrates since the effective date of service connection, the Veteran’s hearing loss has manifested in no worse than Level II acuity in the right ear and no worse than Level II acuity in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from September 1966 to September 1970. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision. The matter was most recently before the Board in February 2019, at which time the Board remanded the issue for further development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to afford the Veteran a VA examination to assess the severity of his hearing loss. Pursuant to the Board’s remand, a VA audiological examination was conducted in October 2019. Therefore, the AOJ substantially complied with the Board’s remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Board notes that the Veteran contended in his July 2015 substantive appeal (VA Form 9) that a prior VA audiological examination was inadequate because the “plugs that [were] placed in [his] ears kept falling out.” Neither the Veteran nor his representative has specifically challenged the qualifications of the examiners who conducted October 2012 and September 2013 VA audiological examinations and such a specific challenge is required to warrant further discussion of the examiner’s competence. Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019) (“whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries”) (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc), modified on other grounds by Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019)(en banc). Moreover, the October 2012 and September 2013 VA examination reports are the product of in-person examinations, a review of the Veteran’s treatment records, and consideration of his reported symptoms and history. In addition, the reports set forth detailed findings in a manner which allows for informed appellate review under applicable VA laws and regulations and the Board finds the examinations to be sufficient for appellate review and of high probative value. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s evaluation of the disability will be a fully informed one). Also, the Veteran was subsequently afforded an additional VA audiological examination in October 2019. Hence, the Board finds that the examination reports, along with the other evidence of record, provide sufficient information for resolution of the matter addressed in this decision. Entitlement to an initial compensable disability rating for bilateral hearing loss. Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from the disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Ratings for hearing loss range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Hearing loss is rated on the basis of examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. Id. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. In such exceptional cases, the Roman numeral designation for hearing loss of an ear may be based only on pure tone threshold average, using Table VIA, or from Table VI, whichever results in the higher Roman numeral. Exceptional hearing loss exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. In the latter situation, the higher Roman numeral, determined from Table VI or VIA, will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. The United States Court of Appeals for Veterans Claims (Court) held that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The Board must determine whether the weight of the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event. However, if the weight of the evidence is against the Veteran’s claim, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, service connection for bilateral hearing loss was established by an October 2012 rating decision, and the Veteran was assigned a noncompensable disability rating. The Veteran’s hearing loss is rated in accordance with 38 C.F.R. § 4.85, Diagnostic Code 6100. At the Veteran’s initial October 2012 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 40 35 50 LEFT 20 30 55 60 Adding the threshold levels from 1000-4000 and dividing by four results in an average pure tone threshold of 41 in the right ear and 41 in the left ear. The October 2012 VA examiner reported speech discrimination scores of 94 percent in the right ear and 98 percent in the left ear and indicated that use of the speech discrimination score was appropriate for the Veteran. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85 and Table VI, the levels of hearing impairment based on the Veteran’s pure tone threshold average and speech discrimination score of both the left and right ears are assigned a numeric designation of Level I for both ears. Combining level I hearing for both ears according to Table VII yields a rating of 0 percent. At the Veteran’s September 2013 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 40 35 35 50 LEFT 20 30 50 60 Adding the threshold levels from 1000-4000 and dividing by four results in an average pure tone threshold of 40 in the right ear and 40 in the left ear. The September 2013 VA examiner reported speech discrimination scores of 98 percent in the right ear and 100 percent in the left ear and indicated that the use of speech discrimination score was appropriate for the Veteran. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85 and Table VI, the levels of hearing impairment based on the Veteran’s pure tone threshold average and speech discrimination score of both the left and right ears are assigned a numeric designation of Level I for both ears. Combining level I hearing for both ears according to Table VII yields a rating of 0 percent. At the Veteran’s post-remand October 2019 VA audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 60 65 75 LEFT 25 60 70 75 Adding the threshold levels from 1000-4000 and dividing by four results in an average pure tone threshold of 63 in the right ear and 58 in the left ear. The VA examiner reported speech discrimination scores of 96 percent in the left ear and 96 percent in the right ear and indicated that the use of the speech discrimination test was appropriate for the Veteran. 38 C.F.R. § 4.85. Under 38 C.F.R. § 4.85 and Table VI, the levels of hearing impairment based on the Veteran’s pure tone threshold average and speech discrimination score of both the left and right ears are assigned a numeric designation of Level II for both ears. Combining level II hearing for both ears according to Table VII yields a rating of 0 percent. The record reflects that the Veteran wears hearing aids, however, he contends that he cannot hear well even with the use of hearing aids. See September 2019 VA treatment records. The record includes a statement offered by the Veteran’s brother in which he stated that he recalled speaking with the Veteran about his hearing loss and its worsening symptoms. See November 2012 statement. The Veteran is competent to report the symptoms of his hearing disability and his brother is competent to report his observations of the Veteran’s symptoms, and the Board has no legitimate basis to challenge the credibility of these contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). However, as discussed above, hearing loss is evaluated using a mechanical application of the rating criteria to certified test results. The lay statements of record do not show that the Veteran has met the specific pure tone thresholds and/or speech discrimination percentages required for a higher rating for bilateral hearing loss at any time since the effective date of service connection. Additionally, the Board has considered the functional impact of the Veteran’s bilateral hearing loss disability. The October 2019 VA examiner noted that the Veteran’s hearing loss did not impact ordinary conditions of daily life, including the ability to work. See October 2019 VA audiological evaluation. The Court has specifically held that the schedular criteria for rating hearing loss contemplates the functional effects of difficulty hearing and understanding speech, such as those reported by the Veteran. Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). The Board further finds that, in conjunction with the appeal for a higher initial rating for bilateral hearing loss, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Id. At 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the preponderance of the evidence is against the Veteran’s appeal for an initial compensable rating for bilateral hearing loss. Therefore, the benefit of the doubt rule does not apply, and an initial compensable rating for bilateral hearing loss is not warranted at any time since the effective date of service connection. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.