Citation Nr: 21026431 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 13-27 737 DATE: May 3, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's bilateral hearing loss has been manifested by no more than Level I hearing acuity in the right ear and Level V hearing acuity in the left 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 (2012); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1961 to September 1965 and March 1973 to September 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. These matters were previously before the Board in November 2020, when they were remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a) (2); 38 C.F.R. § 20.900(c). 1. An initial compensable rating for bilateral hearing loss Service connection for bilateral hearing loss was established in a February 2013 rating decision that is the subject of this appeal. A noncompensable rating was assigned pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100, effective June 11, 2012. The Veteran asserts, in essence, that the audiological findings of record do not accurately reflect the severity of his bilateral hearing impairment and that a higher initial rating is warranted. He asserted that the medical evidence shows that he suffers from significant hearing loss, particularly in the higher frequencies; uses VA-prescribed hearing aids; and has difficulty hearing and understanding others. See February 2014 and September 2014 statements. During the October 2017 Board hearing, he described difficulty hearing others, including while on the telephone, despite the use of VA-issued hearing aids and headsets, and that his left ear hearing acuity is worse than his right ear. In a September 2020 statement, the Veteran asserted, in essence, that his hearing acuity has worsened, stating that due to a loss of the pinna fold in the right ear from skin cancer surgery, he has loss of conduction and sound vibration, which makes it difficult to capture sounds and understand words and that he has difficulty understanding others when more than one person is speaking in a room. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Disability ratings for hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC) combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. Evaluations of bilateral sensorineural hearing loss 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 pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second (Hertz). See 38 C.F.R. § 4.85. To evaluate the degree of disability for bilateral service-connected hearing loss, the rating schedule establishes eleven (11) auditory acuity levels, designated from Level I for essentially normal acuity through Level XI for profound deafness. See 38 C.F.R. § 4.85 and Tables VI, VIA, and VII (Diagnostic Code 6100). The rating criteria also provides for rating exceptional patterns of hearing impairment when the pure tone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. In such cases, each ear is considered separately, and the Roman numeral designation for the ear with an exceptional pattern of hearing impairment is derived from Table VI or VIA, whichever results in the higher numeral. Id. An examination for hearing loss must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC test) and a pure tone audiometry test. The evaluations derived from the Rating Schedule are intended to make proper allowance for improvement by hearing aids. The Veteran underwent VA audiological examinations, pursuant to VA regulations, in February 2013, October 2016 and February 2021. During the February 2013 VA examination, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 65 75 51 LEFT 30 50 60 55 49 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 96 percent in the left ear. The results from the February 2013 audiological evaluation correspond to Level I in both ears under Table VI. Where hearing loss is at Level I in both ears, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85, Table VI, VII. During the October 2016 VA audiological evaluation, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 20 25 40 50 34 LEFT 25 45 50 55 44 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The results from the October 2016 audiological evaluation correspond to Level I in both ears under Table VI. Where hearing loss is at Level I in both ears, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85, Table VI, VII. During the February 2021 VA examination, audiometric testing revealed pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 40 50 60 70 55 LEFT 55 60 70 80 66.25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 98 percent in the left ear. The results from the February 2021 audiological evaluation correspond to Level I in the right ear and Level II in the left ear under Table VI. Where hearing loss is at Level I in the right ear and Level II in the left ear, a 0 percent rating is assigned under Table VII. 38 C.F.R. § 4.85, Table VI, VII. Because the left ear exhibited an exceptional pattern of hearing loss pursuant to 38 C.F.R. § 4.86(a), the audiology results for the left ear were applied to Table VIA, resulting in Level V hearing loss in the left ear. Under Table VII, where hearing is at Level I in one ear and Level V in the other, a noncompensable evaluation is assigned. The examiner remarked that there was a worsening of the Veteran's symptoms but no change in diagnosis; and that speech discrimination was excellent at the elevated levels, and as long as the Veteran is fit with appropriate amplification, he would not have any functional limitations or restrictions due to his hearing loss. The Board notes that VA outpatient audiological evaluations performed in February 2012 and September 2017 are of record; however, the audiometric results of these evaluations were identified by the clinician as being inadequate for rating purposes. See 38 C.F.R. § 4.85. The Board must predicate its determination based on the results of the valid audiology examinations of record. See Lendenmann, 3 Vet. App. at 349. Regardless, the pure tone threshold findings during the February 2012 and September 2017 outpatient audiological evaluations are consistent with those shown during the January 2013, October 2016 and February 2021 VA examinations and do not reflect pure tone thresholds that fall within the requirements of 38 C.F.R. § 4.86, such that an evaluation without speech discrimination results can be assigned. Additional VA and private treatment records throughout the appeal period reflect symptoms and findings that are consistent with, but no worse than, those noted on the valid VA examinations. See February 2013, March 2013, February 2017 and November 2017 VA treatment records and July 2016 and January 2017 private treatment records. Based on the probative audiometric testing of record, as discussed above, the preponderance of evidence is against assigning a compensable rating for bilateral hearing loss at any point during the appeal period. The audiometric findings reflect no worse than Level I hearing acuity in the right ear, as shown on the February 2013, October 2016 and February 2021 VA examinations, and Level V hearing acuity in the left ear, as shown on the February 2021 VA examination, which corresponds with a noncompensable rating under Table VII. See 38 C.F.R. § 4.85, Table VI, VII. The Board has carefully considered the Veteran's statements regarding the functional impairment of his hearing loss on his daily life, including his difficulty hearing and understanding others, even while wearing hearing aids; having to ask others to repeat themselves; and difficulty hearing others when in a crowded environment. See Martinak v. Nicholson, 21 Vet. App. 447, 454-56 (2007). However, the rating criteria are designed to take into account testing that accurately measures the Veteran's hearing impairment in an objective way. The Board finds the objective medical evidence of record is of greater probative value as to the severity and level of impairment of the Veteran's bilateral hearing loss than the lay assertions. Moreover, the VA examiners addressed the effects of the Veteran's hearing loss on his daily activities and occupational functioning. See Id. In a March 2021 statement, the Veteran's representative challenged the audiometric findings of the February 2021 VA examination, asserting that the speech recognition score of 100 percent was inconsistent with the pure tone threshold findings. While the Board has considered the representative's contention, the Board finds the February 2021 VA examination was performed as required by VA regulation and is adequate for rating the Veteran's bilateral hearing loss. In this regard, the necessary testing was conducted by an audiologist. The representative's contention is merely a lay assertion disagreeing with the audiometric findings recorded and is insufficient to effectively challenge the adequacy of the examination. Moreover, his challenge to the left ear speech recognition score does not impact the outcome as that ear was also evaluated under 38 C.F.R. § 4.86 and Table VIA based solely on pure tone thresholds. In sum, the Board finds that the most probative evidence is against assigning a compensable rating at any point during the appeal period, and the claim for a higher initial rating for bilateral hearing loss 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 Veteran's claim, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 2. Entitlement to a TDIU A November 2020 Board decision remanded the issue of entitlement to a TDIU, as it was inextricably intertwined with the increased rating claim for bilateral hearing loss and the RO was currently developing a TDIU claim. While the RO issued a February 2021 supplemental statement of the case (SSOC) addressing the increased rating claim, an SSOC addressing the issue of a TDIU has not been issued. Thus, a remand for issuance of an SSOC is necessary. 38 C.F.R. § 19.31. The matter is REMANDED for the following action: Readjudicate the Veteran's claim for entitlement to a TDIU. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished an SSOC and given an opportunity to respond before the case is returned to the Board. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.