Citation Nr: 21026284 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-55 169 DATE: April 30, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Audiological evidence demonstrates that the Veteran’s bilateral hearing loss was manifested by no worse than Level I hearing acuity in his right ear, and Level I hearing acuity in his left ear, which corresponds to a noncompensable (zero percent) rating. CONCLUSION OF LAW The criteria for a compensable rating for the Veteran’s bilateral hearing loss has not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1972 until his honorable discharge in December 1972, with additional honorable service in the Puerto Rico Army National Guard. The Board of Veterans’ Appeals (Board) thanks the Veteran for his service to our country. This matter comes before the Board on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for bilateral hearing loss with a noncompensable (zero percent) rating effective September 11, 2009. In November 2018, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In March 2021, the Board granted a December 2020 request from the Veteran’s representative for an additional 90 days to submit evidence prior to the Board deciding the claim. As the Veteran had two separate appeals pending before the Board, in a March 2021 letter sent to the Veteran and his representative, the Board requested that the Veteran clarify whether his extension request was for his increased rating claim for bilateral hearing loss; the letter notified the Veteran that if no response was received within 30 days, the Board will assume that no argument is forthcoming. Neither the Veteran nor his representative have responded to the clarification request. Thus, the Board will proceed with a decision in this matter. Entitlement to a compensable rating for bilateral hearing loss. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R., Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disease and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA evaluates hearing impairment under the General Rating Formula for Impairment of Auditory Acuity provided in 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. Evaluations for defective hearing range from noncompensable (zero percent) to 100 percent based on organic impairment of hearing acuity, as measured by the results of speech discrimination tests, together with the average hearing threshold levels as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz (Hz)). To evaluate the degree of disability for service-connected hearing loss, 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. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. See Bruce v. West, 11 Vet. App. 405, 409 (1998); Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In certain circumstances, when decibel levels at all frequencies are especially elevated or there is a large difference in levels between lower frequencies, exceptional patterns of hearing loss are found, and special evaluation rules may be applied; such is not the case here. 38 C.F.R. § 4.86. An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC Test) and a puretone audiometry test. 38 C.F.R. § 4.85. 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In November 2015, the Veteran disagreed with the noncompensable (zero percent) rating assigned for his bilateral hearing loss. The Board has considered the Veteran’s statements and the audiological examination reports dated June 2011, April 2015, August 2016, and January 2019. The Board finds entitlement to a compensable evaluation for bilateral hearing loss is not warranted. Turning to the evidence of record, in June 2011, the Veteran was afforded a VA audiological examination. The examiner noted the Veteran’s hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 25 40 30 LEFT 20 25 25 45 35 The average puretone threshold was 30 decibels in the right ear, and 32.5 decibels in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear, and 100 percent in the left ear. Under Table VI Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination (Table VI), the June 2011 results yield numeric hearing impairment designation of Level I in the right ear, and Level I in the left ear. Intersection of the two levels is consistent with a noncompensable (zero percent) rating. 38 C.F.R. § 4.85, Table VII Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100) (Table VII). In October 2016, the Veteran submitted an April 2015 clinical audiological evaluation completed by an audiologist at Precision Hearing and Balance Center. The Board notes the April 2015 audiometric results were in the form of an audiometric chart, as opposed to a table. However, the process of reading the raw data from the chart used to report it requires no specialized medical training or knowledge; no interpretation is needed to transcribe the numbers from one form to another. In the role as fact finder, the Board has reviewed the graphical findings of the April 2015 audiological reports and determined the puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 30 35 35 30 LEFT 30 30 35 35 35 The average puretone threshold was 32.5 decibels in the right ear, and 33.75 decibels in the left. Speech audiometry revealed speech recognition ability of 100 percent in the right ear, and 96 percent in the left ear. The audiogram does not reveal which word list was used. As a result, Table VIa must be used to obtain a numeric designation of hearing impairment for each ear based only on puretone threshold averages. Under Table VIa Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average (Table VIa) the April 2015 results yield numeric hearing impairment designation of Level I in the right ear, and Level I in the left ear. Intersection of the two levels is consistent with a noncompensable (zero percent) rating. 38 C.F.R. § 4.85, Table VII. As noted, in November 2015, the Veteran disagreed with the noncompensable (zero percent) rating assigned for his bilateral hearing loss. The Veteran was afforded a VA audiological examination in August 2016. The examiner noted the Veteran’s hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 30 25 35 25 LEFT 40 35 40 35 25 The average puretone threshold was 28.75 decibels in the right ear, and 33.75 decibels in the left. Speech audiometry revealed speech recognition ability of 100 percent in the right ear, and 100 percent in the left ear. The examiner stated these test results were valid for rating purposes and the use of a speech discrimination score (Maryland CNC Test) was appropriate for the Veteran. Under Table VI, the August 2016 results yield numeric hearing impairment designation of Level I in the right ear, and Level I in the left ear. Intersection of the two levels is consistent with a noncompensable (zero percent) rating. 38 C.F.R. § 4.85, Table VII. In November 2018, the Board remanded the issue of entitlement to an increased rating for bilateral hearing loss to afford the Veteran a new audiological examination. The Veteran underwent a Veterans Evaluation Services (VES) audiological examination in January 2019. The examiner noted the Veteran’s hearing acuity in puretone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 30 30 40 45 40 LEFT 30 30 35 45 35 The average puretone threshold was 38.75 decibels in the right ear, and 36.25 decibels in the left. Speech audiometry revealed speech recognition ability of 62 percent in the right ear, and 68 percent in the left ear. However, the examiner stated the use of the speech discrimination score was not appropriate for this Veteran “because of language difficulties, cognitive problems, inconsistent speech discrimination score, etc., that make combined use of puretone average and speech discrimination scores inappropriate.” As a result, Table VIa must be used to obtain a numeric designation of hearing impairment for each ear based only on puretone threshold averages. Nonetheless, those results do not support the assignment of any higher rating. The VES examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500-4000Hz. The examiner addressed the functional impact of the Veteran’s disability, noting the Veteran reports of difficulty hearing and understanding speech, more in noisy environments. Under Table VIa, the January 2019 results yield numeric hearing impairment designation of Level I in the right ear, and Level I in the left ear. Intersection of the two levels is consistent with a noncompensable (zero percent) rating. 38 C.F.R. § 4.85, Table VII. There is no competent evidence of the presence of exceptional patterns of hearing loss, so a rating pursuant to 38 C.F.R. § 4.86 is not warranted. In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court held the rating criteria for hearing loss “contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure. Thus, when a Veteran’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.” Id. at 369. The Board has considered the Veteran’s lay statements concerning his hearing loss. The Veteran is competent to report his symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds the objective measurements of hearing require specialized testing, and they fall outside the realm of common knowledge of a layperson and the Veteran is, thus, not competent to provide evidence on the issue of severity. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). As such, the audiological examinations are more probative than the Veteran’s subjective complaints of increased symptomatology. The Board acknowledges the difficulties the Veteran experiences as a result of his hearing loss. However, as explained above, the assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometry results are obtained. As such, the Board must predicate its determination based on the audiological examination results of record. See Lendenmann, 3 Vet. App. 345. Accordingly, the Board is bound by law to apply the VA’s Rating Schedule based on the Veteran’s audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Board is appreciative of the Veteran’s faithful and honorable service to our country. However, because the preponderance of the evidence is against his claim, the provision of 38 U.S.C. § 5107(b) regarding reasonable doubt is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. Therefore, the claim for a compensable evaluation for bilateral hearing loss is denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.