Citation Nr: 21022184 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-30 269 DATE: April 15, 2021 ORDER Entitlement to a compensable evaluation 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 I in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for a compensable evaluation for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service in the United States Army from July 1986 to July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a June 2019 hearing. A transcript of the hearing is of record. The issue was previously before the Board in July 2020, when it was remanded for additional development. The issue was remanded so that the Veteran could be afforded a new VA examination to address the current severity of his bilateral hearing loss. While the examiner was directed to review the entire claims file, the remand specifically directed the examiner’s attention to the June 2019 hearing transcript. Additionally, the examiner was directed to report in detail all pertinent symptomatology and findings. The Veteran was afforded a new VA examination for his hearing loss in August 2020. The August 2020 examination reflected a review of the claims file, contained objective findings, discussed the Veteran’s medical history and functional impact of his hearing loss. Therefore, there was substantial compliance with the July 2020 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). At the time of the July 2020 remand, the issues of increased ratings for right and left foot conditions were also remanded. The evaluations for these issues were increased from 0 percent to 10 percent in an October 2020 rating decision. In December 2020, the Veteran submitted a VA Form 20-0996 (Request for Higher-Level Review) with regards to these issues. Therefore, these issues are not before the Board at this time. 1. Entitlement to a compensable evaluation for bilateral hearing loss Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of the activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); see also 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o). Hearing loss ratings are based on mechanical application of VA rating schedule to the results of audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The raw data comes from audiology reports that demonstrate average hearing threshold at the frequencies 1000, 2000, 3000, and 4000 Hertz. These results are grouped into 11 auditory acuity levels designated from Level I for normal hearing acuity, through Level XI for profound deafness. A rating is determined based upon combination of levels of hearing loss in both ears, and speech discrimination scores. See 38 C.F.R. § 4.85, Table VI. For certain forms of severe hearing limitation, Table VIa is also available to calculate the rating, based on only pure tone threshold averages and not speech discrimination scores. See 38 C.F.R. § 4.85(c). Additionally, the regulations allow for evaluating exceptional patterns of hearing impairment. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, Table VI or VIa is to be used, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). The Veteran was previously afforded a VA examination for his hearing loss in August 2012. In July 2020, the Board found that a new examination was warranted as the most recent examination was from eight years ago. Further, the Board agreed with the Veteran’s contentions that the results of the speech discrimination portion of the August 2012 VA hearing loss examination suggest there may have been a report inaccuracy compared to the reported pure tone thresholds. At the June 2019 hearing, the Veteran testified that his hearing has gotten worse since the August 2012 VA examination. The Veteran reported having increasing problems at work, including not being able to hear at meetings or conferences. The Veteran testified that because it is getting harder and harder for him to hear, he is definitely going to have to at least get hearing aids. The Veteran underwent a VA examination in August 2012. The relevant findings on audiometric data analysis consisted of the following: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 10 10 10 40 75 Left 10 5 10 75 85 The pure tone average was 34 in the right ear and 44 in the left ear. Speech audiometry using the Maryland CNC word list revealed speech discrimination scores of 98 percent in each ear. The results do not present an exceptional pattern of hearing impairment. The examiner stated that there was no effect on the Veteran’s occupation or usual daily activities. Applying the results to Table VI yields a finding of Level I hearing loss in the right ear and a finding of Level I hearing loss in the left ear. Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85. At his hearing, the Veteran’s attorney argued that the August 2012 examination was deficient because the Veteran had hearing loss at 3000 Hz and 4000 Hz, and his speech discrimination scores were 98 percent. The attorney reasoned that this was not possible. The audiologist who conducted the August 2012 VA examination did not find that any of the testing was invalid or not usable for rating purposes. There is nothing in the examination report to indicate that the word recognition testing was invalid. The Veteran’s attorney’s assertion that the speech testing was invalid is not probative evidence. Kern v. Brown, 4 Vet. App. 350, 353 (1993) (noting that attorneys are generally “not qualified to provide an explanation of the significance of the clinical evidence.”) The Veteran was afforded a new VA examination in August 2020. The relevant findings on audiometric data analysis consisted of the following: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 15 15 60 75 Left 15 5 15 85 85 The pure tone average was 41 in the right ear and 48 in the left ear. Speech audiometry using the Maryland CNC word list revealed speech discrimination scores of 100 percent in the right ear and 92 percent in the left ear. The results do not present an exceptional pattern of hearing impairment. Applying the results to Table VI yields a finding of Level I hearing loss in the right ear and a finding of Level I hearing loss in the left ear. Where hearing loss is at Level I in each ear, a noncompensable rating is assigned under Table VII in 38 C.F.R. § 4.85. Additionally, at the August 2020 VA examination, the Veteran reported that as a result of his hearing loss, he experiences difficulty hearing at meetings which makes it hard to do his job because he cannot hear what others are saying. The Veteran stated that he has trouble hearing with any background noise present, and has difficulties hearing the telephone, television, as well as in church and at restaurants. The Veteran also reported that he needs people to repeat themselves. Based on a review of the evidence, the Board finds that a compensable rating is not warranted. A mechanical application of the rating criteria shows the Veteran’s hearing loss does not meet the criteria for a higher rating during the appeal period. In reaching this conclusion, the Board has determined that the August 2020 examination is highly probative evidence. The Board has considered the Veteran’s reported symptomatology related to service-connected bilateral hearing loss. He is competent to report a decrease in hearing acuity and clarity because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). His assertions are also credible. However, the assignment of a disability rating for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. at 349. In this case, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. The Veteran in this case is not competent to measure his level of hearing loss and apply it to the Rating Schedule, as the record does not show that he has the expertise or training to conduct audiometric testing to measure the degree of bilateral hearing loss. The Veteran described the functional impact of his hearing loss, as noted above. The rating criteria contemplate speech recognition thresholds and the ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). For these reasons, entitlement to a compensable rating for bilateral hearing loss is denied. 38 C.F.R. §§ 4.3, 4.7. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.