Citation Nr: 21025114 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-39 457 DATE: April 27, 2021 ORDER A compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran had active service from January to October 1963. 2. The Veteran died in August 2018 at the age of 73. In April 2020, the Regional Office (RO) recognized the appellant as an eligible substitute claimant in the appeal. 3. At worse, audiometric findings revealed an average puretone threshold of 62.5 decibels (dBs) and 88 percent speech recognition in the right ear and an average puretone threshold of 62.5 dBs and 86 percent speech recognition in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86, 4.87, Diagnostic Code (DC) 6100 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 2020, the Board remanded the appeal for additional development, to include clarifying the findings made by a private audiologist in a March 2017. Subsequently, in December 2020 and January 2021, new Form 21-4142s for the audiologist were sent to the appellant; however, the release forms were not returned. The case has now been returned to the Board for further appellate action and the decision will be made based on the evidence of record. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Additionally, the Rating Schedule provides rating tables for the evaluation of hearing impairment. Table VI assigns a Roman numeral designation (I through XI) for hearing impairment based on a combination of percent speech discrimination and the puretone threshold average (the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four). 38 C.F.R. § 4.85. Table VII is used to determine the percentage evaluation by combining the Table VI Roman numeral designations for hearing impairment in each ear. When evaluating service-connected hearing impairment, ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned in audiometric evaluations. Lendenmann v. Principi, 3 Vet. App. 345 (1992). 38 C.F.R. § 4.86 provides for exceptional patterns of hearing impairment. When the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hz) is 55 dBs 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. 38 C.F.R. § 4.86(a). Each ear is evaluated separately. Turning to the medical evidence, in a December 2014 VA examination, the Veteran reported that his hearing loss made it difficult for him to hear or understand other voices. The examiner diagnosed bilateral sensorineural hearing loss and conducted an audiological examination. The puretone thresholds, in dBs, were as follows:       HERTZ     1000 2000 3000 4000 RIGHT 35 50 55 50 LEFT 40 60 60 60 The average puretone thresholds were 47.5 dBs in the right ear and 55 dBs in the left ear. Word recognition scores were 88 percent in the right ear and 86 percent in the left ear. Applying the December 2014 findings to Table VI reveals numeric designations of Level II in both the right and left ears. The numeric designation in the right ear (Level II) along with the numeric designation for the left ear (Level II) reflect a noncompensable rating for bilateral hearing loss. In October 2015 and March 2017 statements, the Veteran reported that without hearing aids, his hearing was “almost zero.” He asserted that the December 2014 VA examination contained an inaccurate speech discrimination score. He said that the examiner increased the volume during the test to a point where the speech test itself was painful and asserted that the audiologist encouraged him to make guesses on words even when he was unsure what the words were. However, while the Veteran was competent to describe his audiological examination, to include any pain and other difficulties experienced during the testing process, he was not competent to assess the adequacy of the examination. Rather, the December 2014 VA examination is adequate for adjudicative purposes, as the examiner performed the objective testing necessary to appropriately rate his hearing under 38 C.F.R. § 4.85. In March 2017, a private clinician noted that the Veteran found that people seemed to mumble, that he sometimes heard words but did not understand them, and that he found it difficult to understand in noisy places. He further reported that he had been told that he spoke loudly, kept the TV at too loud of a volume, and occasionally missed the ringing of the telephone. The clinician conducted an audiometric examination and found that the puretone thresholds, in dBs, were as follows:       HERTZ     1000 2000 3000 4000 RIGHT 50 65 70 65 LEFT 55 70 60 65 The average puretone thresholds were 62.5 in the right and left ears. Of note, the puretone thresholds reported in the March 2017 examination were 55 decibels or more at each of the four specified frequencies in the Veteran’s left ear. Thus, the provision of 38 C.F.R. § 4.86(a) for exceptional patterns of hearing applied to the left ear. Accordingly, applying the findings to Table VIA reveals a numeric designation of Level V in the left ear. However, the puretone threshold at 1000 Hz was less than 55 dBs in his right ear; therefore, the provision of 38 C.F.R. § 4.86(a) did not apply, and the numeric designation could only be determined using Table VI. Additionally, while speech discrimination scores of 64, 76, and 88 percent, respectively, were found, the clinician did not clarify the ears to which the scores were assigned. Accordingly, the March 2017 private audiological test is assigned lesser probative value. The Veteran was competent to describe hearing difficulty; however, his description of his service-connected disability must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. In this regard, ratings are derived by a mechanical application of the rating schedule. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Thus, the Board must predicate its determinations on the basis of the results of the audiology studies of record. Based on the results from the examination and evidence discussed above, the criteria for a compensable rating for bilateral hearing loss was not met. Therefore, the medical evidence does not support a compensable rating for bilateral hearing loss. The Board has considered whether referral for extra-schedular consideration is warranted. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular evaluation is made. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran described and the findings made by the various medical professionals, such as difficulty hearing, are “like or similar to” those explicitly listed in the rating criteria, which considers the level of hearing loss as tested in audiometric evaluations. Mauerhan, 16 Vet. App. at 443. Specifically, in the audiological examinations and lay statements, the Veteran reported difficulty hearing and understanding voices, struggles in noisy environments, and difficulty hearing the television and telephone. In this regard, the rating criteria for hearing loss were last revised, effective June 10, 1999. See 64 Fed. Reg. 25,200 (May 11, 1999). In forming these revisions, VA sought the assistance of the Veteran’s Health Administration (VHA) in developing criteria that contemplated situations in which a veteran’s hearing loss was of such a type that speech discrimination tests may not reflect the severity of communicative functioning these veterans experienced or that was otherwise an extreme handicap in the presence of any environmental noise, even with the use of hearing aids. VHA had found through clinical studies of veterans with hearing loss that when certain patterns of impairment are present, a speech discrimination test conducted in a quiet room with amplification of the sounds did not always reflect the extent of impairment experienced in the ordinary environment. The decibel threshold requirements for application of Table VIA were based on the findings and recommendations of VHA. The intended effect of the revision was to fairly and accurately assess the hearing disabilities of veterans as reflected in a real life industrial setting. 59 Fed. Reg. 17,295 (April 12, 1994). Accordingly, the functional impairment due to hearing loss that is compounded by background or environmental noise is a disability picture that was considered in the current schedular rating criteria. Therefore, the Veteran’s struggle to comprehend verbal conversations and environmental noise was a factor contemplated by the regulations and rating criteria as defined, and ratings were based on the overall severity and frequency of the disability, to include subjective complaints. Additionally, there was no indication that the average industrial impairment from his disability would be to such a degree as to warrant the assignment of higher ratings. Accordingly, referral for extra-schedular consideration is not in order. Consideration has been given to assigning staged ratings for the Veteran’s bilateral hearing loss. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.