Citation Nr: 21026528 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-15 669 DATE: May 3, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level II in the right ear and Level II 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, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 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 June 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) from a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a December 2018 decision, the Board remanded this matter to the RO for further development. More specifically, the Board directed the RO to schedule the Veteran for a new examination to determine the severity of his bilateral hearing loss as the previous September 2013 VA examination could not provide reliable test results for rating purposes and to obtain updated VA treatment records. The Veteran was afforded a new examination in October 2019 and updated VA treatment records have been associated with the record. In June 2020, the RO issued a Supplemental Statement of the Case continuing the current noncompensable rating for the Veteran's claimed bilateral hearing loss. The Board therefore determines that there has been substantial compliance with its previous remand.. The matter now returns to the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has 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). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold and as measured by pure tone audiometric tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test (Maryland CNC) together with the results of a pure tone audiometry test. The vertical columns in Table VI (38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal rows in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (38 C.F.R. § 4.85) by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. The provisions of 38 C.F.R. § 4.86(a) provide that when the pure tone thresholds at each of the four specified frequencies (1000, 2000, 3000, and 4000 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. The provisions of 38 C.F.R. § 4.86(b) provide that when the 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. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a compensable rating for bilateral hearing loss is denied. The Veteran generally contends that his bilateral hearing loss is worse than currently rated. In an August 2013 private audiology evaluation by Allied Hearing, the examiner diagnosed the Veteran with high frequency sensorineural hearing loss, but the exact pure tone decibel readings for each ear were not clear to evaluate his rating for the Tables. Therefore, this evaluation is inadequate for VA purposes. See 38 C.F.R. § 4.85(a). In the September 2013 VA examination, the examiner noted that the Veteran's responses were not consistent throughout testing, and therefore could not provide reliable test results. Therefore, the December 2018 Board decision deemed this evaluation as inadequate for VA purposes. See 38 C.F.R. § 4.85(a). However, in the October 2019 VA evaluation, the Veteran's audiometric testing results, in decibels and Maryland CNC Word List speech recognition score were as follows: HERTZ 1000 2000 3000 4000 AVG CNC RIGHT 30 55 70 90 61.25 94% LEFT 45 55 80 85 66.25 92% Applying the October 2019 VA examination results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable rating under Diagnostic Code 6100. The pure tone thresholds of record do not reflect an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(a) because the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is not 55 decibels or more; and, as such, that provision is inapplicable. Additionally, an exceptional pattern of hearing loss as contemplated by 38 C.F.R. § 4.86(b) is not shown as the documented pure tone thresholds for the Veteran are not 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, thus Table VIA is not applicable. 38 C.F.R. § 4.86(b). The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's contentions of difficulty hearing. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, supra. During his examinations, the Veteran reported functional impairments due to his hearing loss. He reported having difficulty hearing conversations in his August 2013 private examination report and that he has difficulty in social settings as he cannot hear conversations well in an October 2019 VA examination. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Board acknowledges that the Veteran believes that his hearing acuity is worse than evaluated because it is difficult for him to hear and understand when people are speaking to him. However, far more probative of the degree of the disability are the results of testing prepared by a skilled professional since the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulty with his hearing; however, he is not competent to assign particular speech recognition scores or pure tone decibel readings to his current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometry. See Lendenmann v. Principi, supra. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Ross v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board has considered whether a staged rating under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. Further, 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 (2017). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported past employment as a teacher and his current employment status is not clear. However, the Veteran has not alleged, and the record does not establish, that he is unable to obtain and maintain employment due to his bilateral hearing loss. As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra. Thus, the Board concludes that the preponderance of the evidence is against finding that the Veteran meets the criteria for a compensable rating for bilateral hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.