Citation Nr: 21026321 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-38 893 DATE: April 30, 2021 ORDER Entitlement to a compensable disability rating for service-connected bilateral hearing loss is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s bilateral hearing loss was manifested by no worse than Level I severity in either ear. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for service-connected bilateral hearing loss have not been met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.85, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1970 to November 1971. This matter comes before the Board of Veterans’ Appeals (Board) following an August 2020 Board remand of an appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) (hereinafter Agency of Original Jurisdiction (AOJ)). The Veteran testified at a video conference hearing before the undersigned in January 2019. A transcript of the proceeding is of record. In February 2019, the Veteran filed a supplemental claim seeking entitlement to service connection for Meniere’s disease, also claimed as vertigo, as secondary to his service-connected acoustic trauma, hearing loss, and tinnitus. The AOJ incorrectly stated that this claim for Meniere’s disease includes hearing impairment and would be included in the Board’s decision. Therefore, the issue of entitlement to service connection Meniere’s disease, also claimed as vertigo, as secondary to his service-connected acoustic trauma, hearing loss, and tinnitus is referred to the AOJ for adjudication. Entitlement to a compensable disability rating for service-connected bilateral hearing loss The Veteran is seeking entitlement to a compensable disability rating for service-connected bilateral hearing loss. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154 (a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran was granted service connection for bilateral hearing loss in June 2013, at which time, he was assigned a non-compensable rating effective July 8, 2008, the date in which the Veteran filed the claim for service connection. The Veteran has challenged this rating, claiming that an initial compensable rating is warranted. During a January 2003 private audiological exam, audiometric testing was conducted, and the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 5 5 10 65 LEFT 10 15 10 55 The puretone averages were 21.25 in the right ear and 22.5 in the left ear. Speech audiometry revealed speech recognition ability of 96 percent in both ears, however, the word list used during this examination was not record. Even assuming that the Maryland CNC word recognition list was used, these scores equate to a I in both ears. Table VII then requires a noncompensable, or 0 percent disability rating. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. During a September 2008 VA examination, the Veteran reported difficulty understanding conversations in noisy environments, as well as understanding women’s voices. During audiometric testing, his pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 20 15 75 LEFT 5 10 20 60 The puretone averages were 30 in the right ear and 23.75 in the left ear. Speech audiometry, using the Maryland CNC word list, revealed speech recognition ability of 98 percent in both ears. The examiner rendered diagnoses of sensorineural hearing loss in both ears. Additionally, the examiner diagnosed the Veteran with bilateral tinnitus. When plugged into the formula in 38 C.F.R. § 4.85, Table VI, these scores equate to a I in both ears. Table VII then requires a noncompensable, or 0 percent disability rating. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. During an August 2009 private audiological exam, the audiometric testing was conducted, and the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 25 30 70 LEFT 10 15 20 65 The puretone averages were 36.25 in the right ear and 27.5 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in both ears, however, the word list used during this examination was not noted. These scores equate to a I in both ears. Table VII then requires a noncompensable, or 0 percent disability rating. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. During an October 2013 private audiological exam, the audiometric testing was conducted, and the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 20 30 70 LEFT 10 10 15 65 The puretone averages were 33.75 in the right ear and 25 in the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 92 percent in the left ear. However, the NU-6 word list was used during this examination. As such, the hearing examination is not compatible with VA rating criteria. During an April 2015 private audiological exam, the audiometric testing was conducted, and the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 25 45 70 LEFT 5 15 25 70 The puretone averages were 37.5 in the right ear and 28.75 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in the right ear and 84 percent in the left ear. However, the word list used during this examination was not noted. Even assuming the Maryland CNC word list was used, these findings would equate to Level II hearing in both ears and a noncompensable rating under Table II. An exceptional pattern of hearing was not shown. The Veteran underwent a second VA examination in September 2015. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 25 35 75 LEFT 10 15 25 65 The puretone averages were 36.25 in the right ear and 28.75 in the left ear. Word recognition testing, using the Maryland CNC word list, was accomplished, showing word recognition of 96 percent in both ears. These scores equate to a I in both ears, for a 0 percent rating under the provisions of 38 C.F.R. § 4.85. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. During a March 2017 private audiological exam, the audiometric testing was conducted, and the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 15 25 75 LEFT 15 15 30 75 The puretone averages were 31.25 in the right ear and 33.75 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 88 percent in the left ear. However, the W-22 word list was used during this examination and the examination is not compatible with VA rating criteria. During the January 2019 Boarding hearing, the Veteran testified that he has a hard time distinguishing different words. Also, the Veteran stated that he has a difficult time hearing his wife, which leads to arguments. Further, he testified that when he is in an area with a lot of noise, like a restaurant, he cannot tell where the noise is coming from, becomes overwhelmed and feels like his head is going to explode. Additionally, the Veteran recalled an event in service where he could not hear for four days 4 days after a tank fired near his head. During a January 2019 private audiological exam, the audiometric testing was conducted, and the Veteran’s pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 30 60 85 LEFT 15 15 25 70 The puretone averages were 31.25 in the right ear and 33.75 in the left ear. Speech audiometry revealed speech recognition ability of 88 percent in both ears. However, the W-22 word list was used during this examination and this examination report is not compatible with VA rating criteria. In January 2021, the Veteran submitted a statement from his wife, in which she explains that due to the Veteran’s hearing loss he has little to no social interactions. Further, she described that when they go out to restaurants, he cannot understand the waitresses, and he is embarrassed to ask them to repeat what they said. Also, he becomes over stimulated by the noise and becomes frustrated. Additionally, the Veteran’s wife stated that she does all the communication for him, both in person and on the phone. And the Veteran will not go anywhere without her because he is afraid someone will speak, and he will not be able to hear it. Following the August 2020 Board remand, the Veteran underwent a third VA examination in January 2021. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 10 30 70 80 LEFT 15 15 25 65 The puretone averages were 47.5 in the right ear and 30 in the left ear. Word recognition testing, using the Maryland CNC word list, was accomplished, showing word recognition of 96 percent in the right ear, and 100 percent in the left ear. These scores equate to a I in both ears, for a 0 percent rating under the provisions of 38 C.F.R. § 4.85. There was no exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86. As shown above, the VA audiometric examinations do not support a compensable rating for the Veteran’s bilateral hearing loss. The Board notes that the Veteran’s assertions that his hearing is much worse than the provided rating. In determining the actual degree of disability, however, the examination findings are more probative of the degree of impairment. Moreover, as noted above, the Court has noted that the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, supra. In this case, the numeric designations produce no more than a noncompensable rating. 38 C.F.R. Part 4 Diagnostic Code 6100. Furthermore, the Veteran does not have an exceptional pattern of hearing as defined by 38 C.F.R. § 4.86 given that the results of audiology testing do not show puretone thresholds at all four of the specific frequencies of 55 decibels or more. The results also fail to show that the pure tone threshold were 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz. Accordingly, the noncompensable evaluation accurately reflects the degree of the appellant’s service-connected hearing impairment. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, § 4.85, Diagnostic Code 6100. With regard to functional impairment, the Veteran reports difficulty distinguishing different words, hearing his wife, and determining the origin of sounds in loud public areas. His speech discrimination abilities, however, were specifically measured by VA audiological examinations and this functional impairment has thus been taken into account as part of the currently assigned evaluation. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Specifically, such criteria contemplate the difficulty the Veteran had hearing in all situations. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech). The Board also acknowledges the Veteran’s assertions that his hearing loss causes Meniere’s disease, tinnitus, social isolation and embarrassment. As noted in the Introduction, the issue of service connection for Meniere’s disease in pending AOJ adjudication as to whether such disability is, in fact, an injury or disease incurred or aggravated in the line of duty. If service-connected, VA has criteria for separately evaluating those symptoms. See 38 C.F.R. § 4.87A, Diagnostic Code 6205. His symptoms of social isolation and embarrassment could potentially be rated under the mental health diagnostic codes if such symptoms arise to a mental health diagnosis. Overall, these symptoms do not represent a basis to refer this case for extraschedular consideration. See Long v. Wilkie, 33 Vet. App. 167 (2020). (continued on the next page) The claim is denied. 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 claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.