Citation Nr: 21029357 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-25 179 DATE: May 13, 2021 ORDER Entitlement to an initial compensable disability evaluation for bilateral hearing loss is denied. FINDING OF FACT The Veteran has been shown to have no worse than level I hearing in the right ear and level I hearing in the left ear throughout the appeal period. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.85, 4.86, Diagnostic Code (DC) 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty in the United States Army from January 1968 to December 1969. This matter was previously before the Board of Veterans' Appeals (Board) in August 2019, at which time it was remanded for further development. The requested development has been completed and the matter is now ready for appellate review. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where 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. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran has been assigned a noncompensable evaluation under Diagnostic Code 6100 for his service-connected bilateral hearing loss. He contends that the severity of his condition more closely reflects the severity required for a higher disability rating. The VA rating scheme for the evaluation of hearing loss provides ratings from noncompensable to 100 percent based on the results of controlled speech discrimination tests together with the results of puretone audiometry tests which average puretone thresholds at 1000, 2000, 3000 and 4000 Hertz. 38 C.F.R. § 4.85 (2020). The evaluation of hearing impairment applies a formula which is essentially a mechanical application of the VA Schedule for Rating Disabilities to numeric designations after audiology evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a) (2020). Using Table VI in 38 C.F.R. § 4.85, the puretone average and speech recognition score are combined to give each ear a numeric designation for use on Table VII to determine the correct disability level. Alternatively, Table VIA uses only the puretone averages to give each ear a numeric designation. The regulations have two provisions for evaluating veterans with certain patterns of hearing impairment that cannot always be accurately assessed under § 4.85 because the speech discrimination test may not reflect the severity of communicative functioning that veterans experience. 38 C.F.R. § 4.86(a) provides that if puretone thresholds in the specified frequencies of 1000, 2000, 3000, and 4000 Hertz are each 55 decibels or more, an evaluation can be based either on Table VI or Table VIA, whichever results in a higher evaluation. This provision corrects the fact that with a 55-decibel threshold level (the level at which speech becomes essentially inaudible) the high level of amplification needed to attempt to conduct a speech discrimination test would be painful to most people, and speech discrimination tests may therefore not be possible or reliable. See 64 Fed. Reg. 25209 (May 11, 1999). Additionally, 38 C.F.R. § 4.86(b) provides that if the puretone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz, an evaluation can be based on either Table VI or Table VIA, whichever results in a higher numeric designation, and that designation will then be elevated to the next higher Roman numeral. This provision compensates for a pattern of hearing impairment that is an extreme handicap in the presence of any environmental noise, and a speech discrimination test conducted in a quiet room with amplification of sound does not always reflect the extent of impairment experienced in the ordinary environment. The Veteran has not been shown to have either of these exceptional patterns at any time. The Veteran has argued that his hearing loss is more severe than is reflected by his assigned evaluation. Although the Veteran is competent to attest to his observations and laypeople may, in some circumstances, opine on questions of diagnosis and etiology, in this case, the Veteran is not competent to diagnose himself with a particular level of hearing impairment. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159(a)(1)(2020) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Specifically, while the Veteran is clearly competent to describe what he experiences (diminished hearing), he is unable to provide competent evidence as the audiometry or measured level of his hearing loss to support a higher disability rating. In conjunction with his claim, the Veteran was afforded a VA examination in December 2014. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 25, 40, 55, and 65, and left ear 20, 25, 55, and 65, at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech audiometry testing revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear. The examiner rendered a diagnosis of bilateral sensorineural hearing loss. The examiner indicated that the Veteran's hearing loss did not impact the ordinary conditions of daily life. Using Table VI in 38 C.F.R. § 4.85, the Veteran's right ear corresponded with Level I hearing loss, the left ear corresponded with Level I hearing loss. These levels correspond with a noncompensable evaluation. In an April 2015 letter, K. C., M.S., CCC-A, indicated that the Veteran could "hear" but the speech signal would be heard inconsistently or completely missed especially in the presence of background noise and reverberation like those found in typical everyday listening environments. With this degree and configuration of hearing loss, the Veteran might miss brief or emphasized words and consonants. The Veteran might misinterpret family/peer conversations and might become fatigued due to the greater listening effort that was required to compensate for the hearing loss and potentially poor acoustics in his environment. She noted that incidental hearing could only occur if the Veteran had access to overhearing conversations that occurred at a distance. Unfortunately, without appropriate technology, the Veteran would have reduced incidental hearing potential because he could not receive and perceive intelligible speech over distances, like those found in typical work/social environments. She indicated that reduced distance hearing posed substantial obstacles in performance because distance hearing was necessary for casual and incidental communication. Therefore, for adults like the Veteran, their distance hearing ability had to be extended as much as possible through hearing assistance technology to capture the "free" auditory information that constantly surrounded them. She stated the consistent use of personal hearing aids would present the Veteran with the best advantage for everyday listening as it would offer prescriptive amplification to accommodate the degree of hearing loss and would, at the same time, effectively reduce background noise and reverberation that might interfere with audition and communication. She indicated that hearing assistance technology was a medical necessity for the Veteran as there were no pharmacological or surgical treatments available to improve his hearing. In an August 2019 remand, the Board directed that an additional VA examination be performed to assess the current severity of the Veteran's bilateral hearing loss. The Veteran was afforded the requested examination in December 2019. At the time of the examination, the Veteran reported having difficulty hearing in background noise or in groups, trouble hearing from a distance, and/or if the speaker was not facing him. He also frequently asked for repetition and needed more volume on the television than others. Audiological evaluation revealed pure tone thresholds, in decibels, as follows: right ear 25, 40, 55, and 65, and left ear 25, 30, 60, and 70 at 1000, 2000, 3000, and 4000 Hertz, respectively. Speech audiometry testing revealed speech recognition ability of 96 percent in the right ear and of 96 percent in the left ear. The examiner rendered a diagnosis of bilateral sensorineural hearing loss. Using Table VI in 38 C.F.R. § 4.85, the Veteran's right ear corresponded with Level I hearing loss, the left ear corresponded with Level I hearing loss. These levels correspond with a noncompensable evaluation. In sum, hearing was, at worst, level I in the right ear and level I in the left ear. A comparison between these hearing levels and 38 C.F.R. § 4.85, Table VII, yields a noncompensable evaluation, consistent with the currently assigned rating. While the Board is sympathetic to the Veteran's assertions that he has difficulty hearing in real-life situations when there is background noise, the fact remains, however, that the VA rating criteria are definitive and provide for a precise result based on audiometric test results. The Veteran's subjective report of difficulty hearing under situational circumstances unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.