Citation Nr: 21029508 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 15-00 153A DATE: May 13, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT During the period on appeal, the Veteran's bilateral hearing loss manifested in no greater than a Level I impairment of each ear under Table VI. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1970. He served honorably in the U.S. Army. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in April 2018. A transcript of the hearing is of record. The Board previously remanded this case in June 2018 and January 2021 for additional development. The case has now returned to the Board for further appellate review. Entitlement to an initial compensable rating for bilateral hearing loss is denied. The Veteran contends that a compensable rating for bilateral hearing loss is warranted. The Board finds that a compensable rating is not warranted. Disability ratings for hearing loss 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, as measured by puretone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 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. Audiometric examinations for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) together with a puretone audiometric test. 38 C.F.R. § 4.85(a). The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the puretone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85(e). The Board has reviewed all of the evidence in the Veteran's file, with an emphasis on the medical evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. A December 2014 VA examination results in a noncompensable disability rating based on the above schedular data. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 50 50 65 48 LEFT 20 60 65 70 54 Speech audiometry revealed speech recognition ability of 92 percent in each ear. Applying Table VI to the audiometric examination findings results in a Level I numeric designation in the right ear and a Level I numeric designation in the left ear. Applying the hearing levels from Table VI to Table VII, a 0 percent evaluation is derived. An October 2019 VA examination also results in a noncompensable disability rating based on the above schedular data. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 55 60 70 55 LEFT 30 50 65 75 55 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear. Applying Table VI to the audiometric examination findings results in a Level I numeric designation in the right ear and a Level I numeric designation in the left ear. Applying the hearing levels from Table VI to Table VII, a 0 percent evaluation is derived. The record contains numerous other audiological evaluations including an April 2010 VA audiological evaluation conducted by an S.M. and a March 2012 VA audiological evaluation conducted by an M.I., which both used NU-6 speech discrimination testing; an October 2019 audiological evaluation which did not include speech discrimination testing; and April 2015 and August 2019 private audiological evaluations, which were confirmed in a February 2021 letter to have used NU-6 speech discrimination testing. However, as these audiological evaluations do not include the Maryland CNC speech discrimination test as required by 38 C.F.R. § 4.85(a), they are not valid for rating purposes. The record also contains a February 2021 private audiological evaluation by C.H. which used the Maryland CNC speech discrimination test. The Board finds that the evaluation is not valid for rating purposes as it was not conducted by a state licensed audiologist as required by 38 C.F.R. § 4.85(a). C.H. is identified as a Hearing Aid Dispenser and provided a Hearing Aid Dispenser license number; accordingly, the preponderance of evidence is against finding that C.H. is a state licensed audiologist. The Board acknowledges the Veteran's May 2015 contention that March 2012 speech discrimination testing results were overlooked as well as his October 2019 contention that an October 2018 audiology record notes significant change in hearing thresholds, particularly in the right ear, and that this should be considered. As determined above, though, the March 2012 and October 2018 evaluations are not valid for rating purposes. While the October 2018 provider noted changes in hearing thresholds, that evidence alone does not reach equipoise that a compensable rating is warranted under the "mechanical application" of DC 6100 as described in Lendenmann. The Board acknowledges the Veteran's statements with regard to his hearing acuity. Specifically, the Veteran reported difficulty understanding people when communicating and difficulty hearing speech clearly, especially with background noise. He also relayed avoiding interacting with others in social and business activities to spare embarrassment and frustration at having to ask people to repeat themselves, consistent difficulty hearing people on the telephone, frequently being unaware that people were speaking to him, and having particular difficulty understanding anybody with an accent. However, in determining the actual degree of disability, the objective examinations are more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran and other lay individuals alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, DC 6100 with respect to determining the severity of his disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2). Additionally, the impairments described are the functional impacts of the Veteran's hearing loss and are therefore contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017); see Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Finally, the Board acknowledges the Veteran's March 2021 request for a new examination at a VA facility. However, there is no evidence, and he did not contend, that the disability has undergone an increase in severity since the October 2019 VA examination. While C.H. concluded in February 2021 that he had diminished hearing since the August 2019 and April 2015 audiological evaluations and that his speech discrimination scores had progressively worsened over the past 6 years, there is no evidence that his disability worsened since the October 2019 VA examination such that VA's duty to assist required providing another examination. Therefore, the Board finds that the duty to assist has been met. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Accordingly, the Board finds that a compensable rating for bilateral hearing loss is not warranted. The Board has considered the benefit of the doubt rule but finds that the preponderance of the evidence is against a compensable rating. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.