Citation Nr: 21024387 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 15-09 530 DATE: April 22, 2021 ORDER Entitlement to an initial compensable rating for the appeal period prior to August 5, 2019 for bilateral hearing loss is denied. Beginning August 5, 2019, a rating higher than 20 percent for bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to August 5, 2019, the Veteran’s bilateral hearing loss disability has been manifested by hearing acuity no worse than Level I in the right ear and Level I in the left ear. 2. Beginning August 5, 2019, the Veteran’s bilateral hearing loss disability resulted in an exceptional hearing pattern with no worse than Level V in the right ear and Level V in the left ear. CONCLUSIONS OF LAW 1. Prior to August 5, 2019, the criteria for an initial compensable rating for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, DC 6100 (2020). 2. Beginning August 5, 2019, the criteria for a rating higher than 20 percent for bilateral hearing loss disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, DC 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to March 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was first before the Board in June 2018, when the Board denied an increased evaluation for the Veteran’s tinnitus and remanded the increased evaluation claim for his bilateral hearing loss disability for further development. Subsequent to the Board’s remand, in a September 2019 rating decision, the RO increased the Veteran’s rating to 20 percent, effective August 5, 2019. This is not considered a full grant of the benefits sought on appeal and the claim for an increased rating remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Bilateral Hearing Loss Disability evaluations are determined by application of the criteria set forth in the 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in connection with a claim for an initial rating, a staged rating is appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. Evaluations of hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. As set forth in the regulations, Tables VI, VIA, and VII are used to calculate the rating to be assigned. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. Alternatively, VA regulations provide that in cases of exceptional hearing loss, when the pure tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever would result in the higher numeral. Pertinent case law also provides that the assignment of disability ratings for hearing impairment are to be derived by the mechanical application of the ratings schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 1. Prior to August 5, 2019 On review, the Board finds an initial compensable rating for bilateral hearing loss prior to August 5, 2019 is not warranted. In July 2012, the Veteran underwent a VA audiology examination, at which time pure tone threshold in decibels were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 40 35 25 45 55 LEFT 40 30 25 35 45 The Maryland CNC speech recognition scores were 100 percent, bilaterally. The examiner noted that test results were valid for rating purposes. Regarding functional effects, the examiner noted the Veteran reported having people raise their voices at work, that he had to get up close to hear them, that his spouse reported he had the TV loud, and that he could not hear the whole conversation in restaurants. Here, applying the July 2012 VA audiometric result to Table VII, the Veteran had Level I hearing acuity in the right ear and Level I hearing acuity in the left ear, resulting in a noncompensable percent rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. An exceptional hearing pattern was not shown. Moreover, the Board finds that the 2012 VA examination report considered the Veteran’s report that people at work had to raise their voices speaking to him and he had to get up close to hear them and that he had to put the TV on loud and could not whole conversation in restaurants. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board finds the July 2012 VA examination report both adequate and probative to the issue at hand. Additionally, the Veteran submitted two private audiograms. According to a December 2010 private audiogram, the Veteran reported difficulty understanding speech in background noise and competing conversations. Pure tone thresholds in decibels were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT Not reported (NR) 40 55 NR 60 LEFT NR 55 50 NR 60 Speech sound discrimination score was 92 percent in the right ear and 88 percent in the left ear; however, as will be discussed below, an audiologist confirmed that Maryland CNC was not used. According to an April 2015 private audiogram, pure tone threshold in decibels were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT NR 60 65 NR 70 LEFT 79 75 75 80 85 Speech sound discrimination score was 90 percent in the right ear and 88 percent in the left ear; however, Maryland CNC was not used. The examiner reported that the Veteran had a very difficult time understanding clients at work. The Board, as fact finder, can interpret the private audiogram shown in graphical format to determine the numeric values of the pure tone levels for adjudication purposes because the audiometric results were conveyed in a straightforward graph. See Kelly v. Brown, 7 Vet. App. 471 (1995). Nonetheless, according to a January 12, 2021 Report of General Information, an audiologist associated with Central Coast Head and Neck confirmed that Maryland CNC word list was not used to determine the speech recognition scores during the private audiology examinations. In addition, 3000 Hertz was not recorded at all for the right ear, and not recorded for the left ear in 2010. Accordingly, the Board assigns little to no probative value to the 2010 and 2015 private audiogram results as they do not conform with VA regulation. See 38 C.F.R. § 4.85(a). Therefore, the only valid audiogram for rating purposes for the first staged period on appeal is the 2012 VA examination report. In other words, there are no additional adequate audiometric findings for this rating period on appeal. Based on the foregoing, the Board finds that a compensable rating for bilateral hearing loss is not warranted as the only adequate and probative audiometric results dated in July 2012 do not meet the criteria for a higher rating under DC 6100 for the rating period prior to August 5, 2019. The Board recognizes the Veteran’s belief that his hearing loss was compensably disabling prior to August 2019. While competent to report observable symptoms such as difficulty hearing, he is not competent to opine that his hearing acuity is of sufficient severity to warrant a higher disability rating under VA’s tables for rating hearing loss disabilities, as such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to have. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Furthermore, the lay opinions and observations of the Veteran alone are not sufficient to address the rating criteria under 38 C.F.R. § 4.85, Diagnostic Code 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also 38 C.F.R. § 3.159(a)(1) and (2). As a preponderance of the evidence is against the assignment of a compensable rating prior to August 5, 2019, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. 2. Beginning August 5, 2019 On August 5, 2019, the Veteran underwent a VA audiology examination, at which time pure tone threshold in decibels were as follows: HERTZ AVG 1000 2000 3000 4000 RIGHT 64 55 65 70 65 LEFT 63 55 55 65 75 The Maryland CNC speech recognition scores were 100 percent in the right ear and 92 percent in the left ear. The examiner noted that test results were valid for rating purposes. The examiner indicated that the Veteran’s hearing loss did not impact ordinary conditions of daily life, including the ability to work. It was noted that at a hearing loss fitting that month, the Veteran reported difficulty hearing daily conversation in most environments. Here, applying the August 2019 audiometric result to Table VII, the Veteran had Level II hearing acuity in the right ear and Level II hearing acuity in the left ear, resulting in a noncompensable rating. 38 C.F.R. § 4.85, Diagnostic Code 6100. However, an exceptional hearing pattern was shown as pure tone threshold at each of the four specified frequencies was 55 decibels or more. Applying these results to Table VIA results in Level V hearing acuity in the right ear and Level V hearing equity in the left ear, which when applied to Table VII warrants a 20 percent rating. Furthermore, the functional effects caused by the Veteran’s bilateral hearing loss were considered and addressed in August 2019 VA examination report, i.e., he reported that he had difficulty hearing daily conversation in most environments. See Martinak, supra. The Board finds the August 2019 VA examination report both adequate and probative to the issue at hand. There are no additional audiometric findings for the period after August 5, 2019. Based on the foregoing, the Board finds that a rating higher than 20 percent for bilateral hearing loss is not warranted as the August 2019 VA audiometric results correspond with the criteria for a 20 percent rating, but no higher. While the Board has considered the Veteran's contentions, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. The Veteran's subjective report of difficulty hearing alone cannot be the basis for a higher disability rating beginning August 2019, or at any time during the appeal period for that matter. The Board must apply the law as promulgated and is bound by VA regulations. (Continued on the next page)   As a preponderance of the evidence is against the assignment of a higher rating beginning August 5, 2019, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (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. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Beach, 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.