Citation Nr: 21028205 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-38 230 DATE: May 10, 2021 ORDER Entitlement to a compensable rating for service-connected bilateral hearing loss is denied. FINDING OF FACT Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level I in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1989 to January 1990 and February 2003 to April 2004, with additional service in the New York Air National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in May 2018 for additional development to include a new VA examination. January 2019 and December 2019 VA examinations were obtained. In October 2020, the Board remanded the Veteran's appeal with instruction to complete all necessary notification and development, request relevant medical records and the appropriate authorizations from the Veteran, schedule the Veteran for an audiological examination for bilateral hearing loss, and conduct any further necessary development. The RO complied with these instructions, and a VA examination was conducted in March 2021. The Board is therefore satisfied that the instructions in its remands of May 2018 and October 2020 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for service-connected bilateral hearing loss The Veteran contends that he is entitled to a compensable rating. In a March 2009 rating decision, the Veteran was granted service connection for bilateral hearing loss and received an initial noncompensable rating assigned under Diagnostic Code 6100. In May 2013, the Veteran filed an increased rating claim stating that his bilateral hearing loss had worsened. 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the February 2014 private examination results, the Board finds that it cannot consider this evidence on appeal. Examinations for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test compliant with Maryland CNC and a Puretone audiometry test. 38 C.F.R. § 4.85. In this case the results are missing the Maryland CNC controlled speech discrimination test. Because this examination does not meet the requirements of 38 C.F.R. § 4.85(a), the examination report is not valid for the purpose of determining whether there is hearing loss within the meaning of 38 C.F.R. § 3.385. Therefore, the Board cannot rely on these results to render a decision. A February 2015 VA examination reveals that the Veteran reported that he "often asks for repetitions [when others are speaking] as a result of hearing loss." 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 2/18/2015 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 40 65 38 94 LEFT 20 25 55 70 43 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A January 2019 VA examination reveals that the Veteran reported an impact on ordinary conditions of daily life, to include currently wearing hearing aids. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 1/22/2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 70 75 80 75 75 32 LEFT 80 85 95 90 87.5 16 The audiologist explained that the Puretone test results were not valid for rating purposes because of inconsistent findings at the time of the examination. Notably, the Veteran had been re-instructed and re-tested, however the examination is inconsistent and considered reliable. A December 2019 VA examination reveals that the Veteran reported he was forced to retire early due to his hearing loss, specially he could not perform his teaching duties. Additionally, he had to depend on other people to tell him what someone was saying, and had a lot of difficulty on the phone. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 12/19/2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 80 90 100 105 93.75 N/A LEFT 100 105+ 105+ 105+ 103.75 N/A The audiologist explained that the Puretone test results were not valid for rating purposes because "[s]ignificant changes in pure tone results from previous February 2015 C&P exam and inconsistencies with stapedial reflexes make pure tone results questionable." Since the Veteran responded to speech at 100dB, for the right ear, speech recognition could not be performed. He had no response to speech at the maximum output of the audiometer. Word discrimination scores for both ears were not available. The examiner remarked, "The exam tests are valid, but such a significant hearing change from 2015 to 2019 will require additional tests to rule out another underlying condition." Lastly, the Stenger results were negative from 500 to 2000 Hz. A March 2021VA examination reveals that the Veteran reported a functional impact on daily life to include having to wear hearing aids and asking people to repeat themselves. 38 C.F.R. § 4.10; Martinak, 21 Vet. App. 447. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: 3/04/2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 95 105 105 105+ 101.67 12 LEFT 80 100 105 105 97.50 4 The audiologist explained that the Puretone test results were not valid for rating purposes because the Veteran displayed no difficulty communicating with COVID masks prior to exam starting. Moreover, all instructions were given by talk over at 55 dB HL which is consistent with normal hearing and the Veteran exhibited no difficulty. However, his Puretone results are consistent with profound difficulty so talk over and communication without visual stimuli would be impossible. For these reasons, the results are considered invalid and should not be used for determination. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the functional impact on daily life, diminished hearing acuity and clarity, and a need to wear hearing aids. 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, 3 Vet. App. 345 (1992). The Board notes on three separate occasions, VA attempted to capture reliable Puretone threshold results to assess the Veteran's hearing loss, specifically in January 2019, December 2019, and March 2021. These examinations all were unable to provide valid Puretone results because of various reasons. The January 2019 and December 2019 examinations reported inconsistencies. The March 2021 examination reported that the Veteran had no difficulty communicating at 55dB HL, which indicates that hearing impairment is not consistent with the testing results. Here, a February 2015 VA examination comprises the only valid audiological testing on record during the appeal period. The examination found a zero percent disability rating under Diagnostic Code 6100. Therefore, an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The Board notes that a presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 134647 (Fed. Cir. 2004) ("The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties."); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. The Veteran has offered no evidence to rebut this presumption. Therefore, the Board will presume that the VA audiologists properly conducted these examinations. See Rizzo, 580 F.3d at 1292; Id. The Board also notes that VA's duty to assist is not unlimited. Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991). VA is not required to administer to the Veteran an unlimited amount of examinations until reliable results can be obtained. Having tried on four separate occasions to test the Veteran's hearing, the Board finds that VA has fulfilled its duty to assist and that any future attempts would be futile. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. 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, clarity, and the need to wear hearing aids, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for 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. Gilbert, 1 Vet. App. 49. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.