Citation Nr: 21023755 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-30 888A DATE: April 21, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT During the period on appeal, the evidence indicates that the Veteran’s hearing loss was manifested by auditory acuity no worse than Level VIII in the left ear, and Level I in the right 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 November 1976 to January 1978. This appeal was remanded by the Board in August 2018. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, all additional reasonably available medical records were sought, obtained, and associated with the claims file, and a new VA opinion was obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in February 2020. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran disagrees with his noncompensable rating for bilateral hearing loss.    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.    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).    Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of §4.86. In this case, service connection for left ear hearing loss was granted in a May 2011 Rating Decision, effective July 21, 2010, the date of the Veteran’s claim. Right ear hearing loss was denied, but granted later, in a July 2013 Rating Decision. The disability was recharacterized as bilateral hearing loss, and the rating backdated to July 21, 2010. Based on the evidence of record, a compensable rating is not warranted for the period on appeal.  Specifically, at a C&P examination in April 2011, the Veteran noted progressively worsening bilateral hearing loss, resulting in difficulties communicating at home and at church. Upon examination, his pure tone thresholds, in decibels, were as follows:    HERTZ 1000 2000 3000 4000 Average RIGHT 30 25 35 55 36.25 LEFT 15 15 70 65 41.25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear.  An exceptional pattern of hearing impairment has not been shown.  Based on these values, the Veteran demonstrated Level I hearing loss in each ear. § 4.85, Table VI. Under Table VII of this section, the appropriate rating is noncompensable. Subsequent audiology visits yielded similar results. At a May 2014 consult post right ear surgery, the Veteran reported improved right ear acuity, with some fullness. Though there is no indication that the examiner used the Maryland CNC test, the Veteran’s speech recognition was 96 percent in the right ear at 75dB, and 88 percent in the left ear at 75 dB. Puretone examination showed normal right ear hearing at 500 to 2000 Hz, mild to moderate hearing loss at 3-8000 Hz. It also showed mild left ear hearing loss at 1-2,000 Hz, sloping to moderately severe at 3,000 Hz rising to moderate at 8,000 Hz. An August 2014 report mentions a significant decline in hearing acuity. Specifically, the Veteran’s left ear word recognition score declined to 76 percent. Nonetheless, there is no indication that the Veteran’s hearing had declined to a compensable level. In fact, at his December 2014 C&P examination, the Veteran’s acuity was still manifested by noncompensable levels. While the examiner was unclear as to how much of his hearing loss was caused by non-service-connected auditory disabilities, a compensable difference was not observed. His pure tone thresholds, in decibels, were as follows:    HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 30 55 30 LEFT 60 40 65 60 56.25 The Veteran reported difficulty understanding spoken words. However, speech audiometry revealed speech recognition ability of 94 percent in the right ear and 84 percent in the left ear.  An exceptional pattern of hearing impairment has not been shown, despite the severity of the Veteran’s left ear hearing loss.  Based on these values, the Veteran demonstrates Level I hearing loss in the right ear, and Level II hearing loss in the left ear. § 4.85, Table VI. Under Table VII of this section, the appropriate rating is still noncompensable. Next, at his January 2015 C&P examination, the Veteran again reported a decline in hearing. However, his left ear acuity had improved somewhat. His pure tone thresholds, in decibels, were as follows:      HERTZ 1000 2000 3000 4000 Average RIGHT 15 20 30 50 29 LEFT 35 30 55 60 45 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear.  An exceptional pattern of hearing impairment has not been shown, despite the severity of the Veteran’s left ear hearing loss.  Based on these values, the Veteran demonstrates Level I hearing loss in each ear. § 4.85, Table VI. Under Table VII of this section, the appropriate rating is still noncompensable. Interim examination shows stable hearing loss, without a compensable decrease in acuity. An April 2017 consult report shows normal right ear thresholds from 500 to 2000 Hz, sloping from mild to moderately-severe mixed hearing loss. In the left ear, puretone results showed moderately-severe to severe mixed hearing loss. These results are stable as compared to the previous examination. Subsequently, at his November 2017 C&P examination, the Veteran reported worsened hearing, especially in the left ear. Upon examination, however, a compensable difference was not observed.  His pure tone thresholds, in decibels, were as follows:    HERTZ 1000 2000 3000 4000 Average RIGHT 10 20 35 40 26 LEFT 65 65 80 70 70 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 56 percent in the left ear.  An exceptional pattern of hearing impairment, 55 dB in each of the four specified frequencies, is shown in the left ear.  Based on these values, the Veteran demonstrates Level I hearing loss in the right ear. The left ear is manifested by Level VIII hearing loss, as this is the higher numeral when Table VI and VIa are applied. § 4.85, Table VI.  Unfortunately, despite the spike in left ear impairment, the appropriate rating under Table VII is still noncompensable. Finally, at his July 2019 C&P examination, puretone thresholds were not reported because unreliable hearing results were obtained.   Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 52 percent in the left ear.  At this examination, initial testing revealed poor agreement between speech recognition tests and puretone threshold averages. The claimant was made aware of inconsistencies, re-instructed, and re-tested, resulting in better scores. As a result, the examiner was unable to provide reliable test results. At best, the examiner estimated that the Veteran’s hearing loss was within 15 dB of his December 2014 values. Even assuming that his puretone thresholds had declined by 15 dB in each ear since December 2014, the Veteran would still demonstrate Level I hearing loss in the right ear and Level VI in the left ear. § 4.85, Table VI. Under Table VII of this section, the appropriate rating is still noncompensable.    In considering the appropriate disability rating, the Board has also considered the Veteran’s statements that his hearing loss is worse than reflected in his current rating.  Notably, evidence shows that the Veteran’s Meniere’s disease and/or residuals of right tympanoplasty might exacerbate his hearing loss. However, this indicates that without these non-service-connected problems, the Veteran’s hearing loss would be better. Accordingly, while the previous Board remand’s dictates to determine were not substantially followed, remand to determine the portion of the Veteran’s hearing loss attributable to his Meniere’s disease would not assist the Veteran in showing a higher level of impairment. 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 service-connected disabilities 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).     In this case, the Veteran is not competent to state that his symptoms merit a higher rating for his hearing loss. The competent evidence concerning the nature and extent of the Veteran’s claimed disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. The Veteran’s lay statements lack the competence required to show entitlement to higher ratings. Lastly, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran does not contend, and the evidence does not show, that his service-connected bilateral hearing loss and tinnitus can render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Based on the evidence of record, the Board determines that a compensable rating is not warranted for the Veteran’s bilateral hearing loss. 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 Z. Maskatia