Citation Nr: 21022926 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-27 967 DATE: April 19, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran’s hearing loss has manifested by no more than Level I hearing impairment in the right ear and a Level II hearing impairment 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. §§ 4.1. 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1956 to October 1958. This matter comes before the Board of Veterans’ Appeals (the Board) on appeal from a rating decision issued in June 2013 by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss and assigned an initial noncompensable rating. While the Veteran was scheduled for a Board hearing in April 2019, the Veterans Appeals Controls and Locator System (VACOLS) indicates that the Veteran cancelled his hearing. Since the cancelled hearing, neither the Veteran or his representative have indicated that a hearing is desired or renewed their request for a hearing. The Board remanded this matter for further development in July 2019. The requested examination was provided in November 2019 and VA treatment records were obtained in July 2020. As the actions specified in the prior remand have been substantially completed, this matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In evaluating hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. 38 C.F.R. § 4.85(a). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I for essentially normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85. Table VII is then used to determine the percentage evaluation by intersecting the Roman numeral designations (from Table VI) for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Exceptional patterns of hearing impairment are evaluated under the provisions of 38 C.F.R. § 4.86. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 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. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the 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 evaluated separately. 38 C.F.R. § 4.86(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial compensable rating for bilateral hearing loss. The Veteran is currently in receipt of an initial noncompensable disability rating for service-connected bilateral hearing loss, effective March 30, 2012, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. He contends that his hearing acuity is worse than contemplated by his currently-assigned disability rating and, therefore, a compensable rating is warranted. The Veteran underwent a VA audiology examination in March 2013. The audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 25 40 40 40 LEFT X 20 45 70 65 Speech discrimination scores on the Maryland CNC word list were 92 percent in the right ear and 84 in the left ear. The average puretone threshold was 36 decibels in the right ear and 50 decibels in the left ear. The Veteran reported that he had difficulty hearing conversations with background noise. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The March 2013 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral I in the right ear and a numeric designation of Roman numeral II in the left ear. The numeric designation for the right ear, I, along with the numeric designation for the left ear, II, entered into Table VII, corresponds to a noncompensable rating. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present. Pursuant to the Board’s remand, the Veteran underwent another VA audiology examination in November 2019. The audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT X 25 35 50 55 LEFT X 20 55 75 65 Speech discrimination scores on the Maryland CNC word list were 96 percent in the right ear and 94 percent in the left ear. The average puretone threshold was 41 decibels in the right ear and 54 decibels in the left ear. The Veteran reported that he had difficulty hearing people when talking to them. Martinak, 21 Vet. App. at 455. The November 2019 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral I in the right ear and a numeric designation of Roman numeral I in the left ear. The numeric designation for the right ear, I, along with the numeric designation for the left ear, I, entered into Table VII, corresponds to a noncompensable (0 percent) rating for hearing impairment. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present. During July 2014 and August 2015 VA primary care visits, the Veteran reported a difficulty hearing. However, the Veteran’s VA treatment records do not contain any other findings relevant to his hearing loss disability. Based on the above medical and lay evidence of record, the Board finds that an initial compensable rating for bilateral hearing loss is not warranted at any time during the period on appeal. Even when using only the worst results, when the Roman Numeral I designation for the right ear and Roman Numeral II designation for the left ear are mechanically applied to Table VII, the result is a noncompensable rating rating. 38 C.F.R. § 4.85; Lendenmann, 3 Vet. App. 345. None of the results reported in the audiological evaluations display an exceptional pattern of hearing loss. 38 C.F.R. § 4.86(a)–(b). The Board acknowledges the Veteran's sincere belief that his hearing loss is worse than reflected by his currently-assigned rating. The Veteran is competent to report symptoms of disability, such as increasing difficulty hearing speech. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating under the rating schedule for hearing loss, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Therefore, while the Board has carefully considered the lay statements of record and given them appropriate weight where they are consistent with the objective medical evidence of record, the Board has accorded greater probative weight to the objective evidence of record, which shows that the Veteran's bilateral hearing loss is not of sufficient severity to warrant a compensable rating at any time. Furthermore, the Veteran’s reported functional limitations are manifestations of decreased hearing acuity, which is already contemplated by the schedular rating criteria for hearing loss. A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran’s disability level and symptomatology, including his difficulty hearing and understanding speech. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (“[W]hen a claimant’s hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria.”). The Board further finds that other than difficulty hearing or understanding speech, the record contains no evidence of other symptoms attributable to the service-connected hearing loss. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for an initial compensable evaluation for bilateral hearing loss at any time during the period on appeal. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates, 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.