Citation Nr: 21027116 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-30 943 DATE: May 4, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's hearing loss has been manifested by no worse than level I hearing in the right ear and level VI hearing in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, 4.86a, DC 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1976 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in August 2019 for additional development, including a VA examination. As there has been substantial compliance with prior remand directives, this matter is properly before the Board for adjudication. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's bilateral hearing loss, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. 1. Entitlement to a compensable rating for bilateral hearing loss The Veteran is seeking a compensable rating for his bilateral hearing loss. After a careful review of the medical evidence of record, the Board determines that a compensable rating is not warranted. The Veteran's hearing loss is rated as noncompensable under Diagnostic Code (DC) 6100. Under DC 6100, hearing loss is evaluated in accordance with the findings obtained on audiometric examination. See Lendermann v. Principi, 3 Vet. App. 345, 349 (1992) (providing that disability ratings for service-connected hearing impairments are determined through mechanical application of the disability rating schedule to the results of audiometric evaluations). The evaluations assigned for hearing impairment range from non-compensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1,000; 2,000; 3,000; and 4,000 Hertz (cycles per second). The degrees of disability for bilateral hearing loss are reflected in eleven auditory acuity levels in the rating schedule, designated from Level I for essentially normal acuity through Level XI for profound deafness. See 38 C.F.R. § 4.85, DC 6100. As set forth in the rating schedule, Tables VI, VIa, and VII are used to calculate the disability evaluation to be assigned. See, id. VA regulations further provide that in cases of exceptional hearing loss, when the pure-tone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 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, and each ear is to be evaluated separately. 38 C.F.R. § 4.86(a). When the pure-tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever would result in the higher numeral. 38 C.F.R. § 4.86(b). The Board notes that the Veteran has not shown such exceptional levels of hearing loss on either examination; such rating criteria is not for consideration in this matter. In hearing loss rating cases, an examination for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85 (a). Additionally, the schedule itself takes into account the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. Martinak v. Nicholson, 21 Vet. App. 447 (2007). On the authorized audiological evaluation in February 2016, the Veteran reported that he has hearing difficulties in the presence of background noise. His pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 25 30 45 40 35 LEFT 35 65 70 65 58.75 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 64 percent in the left ear When utilizing Table VI, the Veteran exhibits Level I hearing impairment in the right ear and Level VI hearing impairment in the left ear. Applying these results to Table VII resulted in a noncompensable rating for the Veteran's bilateral hearing loss. Shortly after his examination, the Veteran began to complain of increased hearing loss bilaterally. Therefore, in August 2019 the Board remanded this appeal so that the Veteran could be afforded a new VA examination. The Veteran underwent another VA examination for his bilateral hearing loss in December 2019. He reported trouble hearing when someone is speaking to him. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 35 45 50 45 43.75 LEFT 45 65 65 70 61.25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and then 88 percent in the left ear. When utilizing Table VI, the Veteran exhibits Level I hearing impairment in the right ear and Level III hearing impairment in the left ear. When applying these results to Table VII, a noncompensable percent rating is again assigned. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his hearing loss is worse than the rating he currently receives. Specifically, that he has daily problems with hearing loss and trouble hearing his wife and co-workers. In this regard, the Board is not unsympathetic to his claim. Any degree of hearing loss would affect one's daily life, and having difficulty hearing family members and colleagues is certainly a symptom to be expected. However, the ratings for hearing loss, as provided in the statutory rating criteria, are mechanical in nature and rely upon audiometric findings. In this case, the audiometric data either of the Veteran's examinations do not show hearing loss that would warrant a compensable rating. Further, while the Veteran is competent to report observable symptoms such as difficulty hearing others speak, these are symptoms which are subjective in nature and not applicable to the rating criteria. Further, the Veteran is not a medical specialist, and he is not competent to identify a specific level of disability according to the appropriate diagnostic code. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). (Continued on the next page) On the other hand, such competent evidence concerning the nature and extent of the Veteran's hearing loss, as anticipated by the rating criteria, has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. The Board has carefully reviewed the evidence of record, to include any medical treatment records applicable to the period on appeal, but find none that would provide for a higher rating under the Diagnostic Code. In sum, while the Board does acknowledge the Veteran's hearing difficulties, based on the evidence of record, a compensable rating for bilateral hearing loss is not supported, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica 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.