Citation Nr: 21023696 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-26 183 DATE: April 21, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to July 14, 2017, and a rating in excess of 20 percent on and thereafter, for the service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. For the period prior to July 14, 2017, audiological evidence demonstrates that the Veteran’s service-connected bilateral hearing loss was manifested by hearing acuity no worse than Level IV in each ear, with no exceptional hearing loss pattern in either ear. 2. Since July 14, 2017, the Veteran’s service-connected bilateral hearing loss has been manifested by hearing acuity no worse than Level V in his right ear and Level VI in his left ear, with no exceptional hearing loss pattern in either ear. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for service-connected bilateral hearing loss prior to July 14, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for an initial disability rating in excess of 20 percent for service-connected bilateral hearing loss since July 14, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1971 to June 1973. This appeal comes before the Board of Veterans’ Affairs (Board) from a December 2015 rating decision issued by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In a November 2018 rating decision, the RO increased the Veteran’s rating from 10 percent to 20 percent disabling for his bilateral hearing loss, effective July 14, 2017. As 20 percent is not the highest rating possible for this disability, the issue remains on appeal at the Board. [Although initially requesting a hearing before a Veterans Law Judge, the Veteran subsequently asked that the hearing scheduled in June 2020 be cancelled. His request was honored.] Increased Ratings – Bilateral Hearing Loss Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 is assigned. 38 C.F.R. § 4.7. In cases where the evaluation of hearing loss is at issue, 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 puretone audiometry test. Examinations will be conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). A rating for hearing loss is determined by a mechanical application of the rating schedule to the numeric designations assigned based on audiometric test results. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric Level I for essentially normal acuity, through numeric Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent eleven categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent eleven categories of decibel loss based on the puretone audiometry test. The numerical designation of impaired efficiency (I through XI) will be determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to puretone decibel loss. For example, with the percentage of discrimination of 70 and an average puretone decibel loss of 64, the numeric designation level is “V” for one ear. The same procedure will be followed for the other ear. 38 C.F.R. § 4.85(b). The percentage evaluation will be found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the poorer hearing and the vertical column appropriate to the numeric designation level for the ear having the better hearing. For example, if the better ear has a numeric designation level of “V,” and the poorer ear has a numeric designation level of “VII,” the percentage evaluation is 30 percent. 38 C.F.R. § 4.85(e), Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event; or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 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 veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s service-connected for bilateral hearing loss is evaluated as 10 percent disabling July 23, 2014 to July 13, 2017, and as 20 percent disabling from July 14, 2017 to the present. He contends that he is entitled to higher ratings for each period. On a September 2015 authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 60 60 60 55 LEFT 45 50 55 65 54 Speech audiometry revealed speech recognition ability of 78 percent in the Veteran’s right ear and 76 percent in his left ear. The average puretone threshold was 55 decibels in the right ear and 54 decibels in the left ear. The Veteran reported that he has difficulties understanding soft-spoken speech, especially in the presence of background noises. In addition, the Veteran reported that he has a difficult time understanding his co-workers and that they constantly yell at him to pay attention when they are speaking to him. In March 2016, the Veteran submitted the results of a private audiogram on a graph. As there is no indication that the Maryland CNC test was used for this audiogram, it cannot be used for VA rating purposes. 38 C.F.R. § 4.85(a). VA audiology notes, dated in September 2016 and January 2017, document the Veteran’s assessment and fitting for new hearing aids. The findings of the September 2015 evaluation translate to Level IV hearing loss in each ear when applied to Table VI of the rating schedule. This level of hearing loss warrants a 10 percent rating and no higher under Table VII of the rating schedule. Therefore, a rating in excess of 10 percent is not warranted prior to July 14, 2017 based upon this evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85. Further, exceptional patterns of hearing impairment include circumstances where the puretone threshold at each of the four specified frequencies is 55 decibels or more, or when the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or higher at 2000 Hertz. Here, no exceptional hearing loss pattern has been shown in either ear at any time during the appeal period prior to July 14, 2017. 38 C.F.R. § 4.86. During this earlier appeal period, there is no additional evidence to indicate that the Veteran’s hearing had sufficiently increased in severity to warrant a higher rating. The Board notes that no other VA examination was conducted until July 14, 2017, which is when it became factually ascertainable that an increase in the Veteran’s hearing loss had occurred. Based on the results of that July 14, 2017 VA audiological evaluation, which will be discussed below, a November 2018 rating decision increased the Veteran’s rating to 20 percent and assigned a July 14, 2017 effective date for the increase. On the July 2017 authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 45 65 65 70 61 LEFT 50 55 65 75 61 Speech audiometry revealed speech recognition ability of 68 percent in the Veteran’s right ear and 64 percent in his left ear. The average puretone threshold was 61 decibels in each ear. The Veteran reported that he has difficulty understanding conversational speech, especially in the presence of background noises. He also reported that people must repeat themselves for him to understand them clearly. The findings of the July 2017 evaluation translate to Level V hearing loss in the right ear and Level VI hearing loss in the left ear when applied to Table VI of the rating schedule. This level of hearing loss warrants a 20 percent rating but no higher under Table VII of the rating schedule. Therefore, a rating in excess of 20 percent is not warranted since July 14, 2017 based upon this evaluation under Diagnostic Code 6100. 38 C.F.R. § 4.85. Further, no exceptional hearing loss pattern has been shown in either ear at any time during the appeal period since July 14, 2017. 38 C.F.R. § 4.86. The Board has considered the Veteran’s lay statements, attesting to the impact of his hearing loss (e.g., his difficulties hearing and understanding others, etc.). However, the Veteran, while competent to report symptoms associated with hearing loss, is not competent to report that his hearing acuity is of sufficient severity to warrant a next-higher evaluation under Diagnostic Code 6100, because such an opinion requires medical expertise, e.g., training in evaluating hearing impairment, which he has not shown. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the medical evidence of record to be more probative. Referral for extraschedular consideration is not warranted for the Veteran’s service-connected bilateral hearing loss either prior to, or since, July 14, 2017. A comparison of the Veteran’s bilateral hearing loss symptoms and the relevant rating criteria does not show “such an exceptional or unusual disability picture... as to render impractical the application of the regular schedule standards.” 38 C.F.R. § 3.321(b). During the entire rating periods on appeal, the Veteran’s symptoms have been characterized by decreased hearing. However, these symptoms are compensated and accounted for in his schedular ratings. Thun v. Peake, 22 Vet. App. 111, 115 (2008). To the extent that the Veteran contends that his symptoms are not contemplated by the schedular criteria, the Board points out that his reported symptoms are essentially well-recognized as the natural effect of decreased hearing, which is what the rating criteria are designed to compensate. The Board does not discount the difficulties the Veteran has with his hearing loss. However, the Board must base its determination on the results of the audiological examinations of record. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Accordingly, based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the claim for initial disability ratings in excess of 10 percent prior to July 14, 2017, and in excess of 20 percent on and thereafter, for the service-connected bilateral hearing loss. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not helpful to him. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.