Citation Nr: 21029904 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-35 035 DATE: May 17, 2021 ORDER Entitlement to an initial compensable rating for a bilateral hearing loss disability is denied. FINDING OF FACT During the entire period on appeal the Veteran's bilateral hearing loss disability has been manifested by not worse than Level II hearing in the right ear and Level I hearing in the left ear. CONCLUSION OF LAW The criteria for an initial compensable rating for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.85, 4.86, Diagnostic Code 6100 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from July 1983 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Previously, the claim was before the Board in November 2018 and was remanded for additional development. As there has been substantial compliance with the directives in the November 2018 remand, the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271(1998). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings will be considered and discussed, as warranted. The Veteran's service connected bilateral sensorineural hearing loss is rated as noncompensable pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Under the rating criteria, the method for rating bilateral hearing loss is based on examination results including a controlled speech discrimination test (Maryland CNC), and a pure tone audiometric test of pure tone decibel thresholds at 1000, 2000, 3000, and 4000 Hz with an average pure tone threshold obtained by dividing these thresholds by four. 38 C.F.R. § 4.85. Once these test results have been obtained, employing Table VI, a Roman numeral designation of auditory acuity level for hearing impairment is ascertained based on a combination of the percent of speech discrimination and pure tone threshold average. Once a Roman numeral designation of auditory acuity level for each ear has been determined, Table VII is used to determine the percentage evaluation for bilateral hearing loss by combining the Roman numeral designations of auditory acuity level for hearing impairment of each ear. 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. See 38 C.F.R. § 4.86. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran contends that an increased initial compensable rating is warranted for his service connected bilateral hearing loss disability. The Veteran contends that his hearing loss has worsened and resulted in increased difficulty hearing, especially in situations whether there is competing background noise, and the regular use of his hearing aids. The Veteran is competent to testify to such lay observable symptomatology, and there is no evidence that these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his bilateral hearing loss during the period on appeal. The question for the Board is whether the Veteran's bilateral hearing loss warrants a compensable rating based on the applicable Diagnostic Code. The Board finds that based on the evidence of record, the preponderance of the evidence is against finding that an increased compensable rating is warranted during the appeal. The Veteran was afforded a VA examination in July 2012. The examiner noted bilateral sensorineural hearing loss. The Veteran reported difficulty hearing. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: July 2012 HERTZ 1000 2000 3000 4000 Avg RIGHT 25 25 65 60 44 LEFT 20 25 40 45 33 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and 98 percent in the left ear. Using Table VI, the Veteran's examination results revealed Level I hearing in the right ear and Level I hearing in the left ear. Based on Table VII, combing the levels for the right and left ear hearing loss results in a noncompensable rating for the Veteran's bilateral hearing loss. The examiner noted that the Veteran's hearing loss impacts his occupational functioning and daily activities in that he has difficulty hearing well. The Board finds this examination is entitled to probative weight. In addition, the Veteran was afforded a VA examination in August 2019. The examiner noted bilateral sensorineural hearing loss. The Veteran reported difficulty hearing and understanding conversations especially in crowded and noisy environments and when there is competing noise. On the authorized audiological evaluation in August 2019, pure tone thresholds, in decibels, were as follows: August 2019 HERTZ 1000 2000 3000 4000 Avg RIGHT 10 20 60 60 38 LEFT 15 20 40 40 29 Speech audiometry revelated speech recognition ability of 84 percent in the right ear and 94 percent in the left ear. Using Table VI, the Veteran's examination results revealed Level II hearing in the right ear and Level I hearing in the left ear. Based on Table VII, combining the levels for the right and left ear hearing loss results in a noncompensable rating for the Veteran's hearing loss. The examiner noted that the Veteran's hearing loss impacts occupational activities and ordinary conditions of daily life in that he has difficulty hearing and understanding conversations, especially in crowded and noisy environments and without visual cues the Veteran often asks other to repeat themselves. The Board finds that this examination is entitled to probative weight. VA treatment records have been associated with the claims file. VA treatment records note the Veteran was seen for follow up relating to his VA issued hearing aids. Treatment records note the Veteran continues to report difficulty hearing especially with competing noise and in social situations. While the Board has considered the Veteran's lay statements of record regarding his ongoing difficulty hearing and communicating and a worsening of his hearing loss and the Veteran's statements are competent and credible. However, the Board gives more probative weight to the competent medical evidence. The Veteran has reported ongoing difficulty hearing, especially in situations with competing noise and an overall a worsening of his hearing during the appeal. The Veteran is competent to relay his current symptoms and the Board finds these statements are credible. However, the Board is bound to apply the VA rating schedule, under which the rating criteria are defined and limited by audiometric findings. The VA examinations using Table VI, at worse showed Level II hearing in the right ear and Level I hearing in the left ear, combing these levels according to Table VII, results in a noncompensable rating. The VA examinations and VA treatment records do not demonstrate an exceptional pattern of hearing as the Veteran did not have pure tone thresholds of 55 decibels or more at each of the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz, or a pure tone threshold of 30 decibels or less at 1,000 Hertz and 70 decibels or more at 2,000 Hertz. The Board finds no basis to alternatively rate this claim under Table VIA. As such a compensable rating is not warranted for this period. See 38 C.F.R. § 4.85, 4.86, Diagnostic Code 6100. Relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). The VA examiners in July 2012 and August 2019 noted functional effects on the Veteran's ordinary conditions of daily life in that the Veteran's hearing loss results in difficulty hearing in social situations, difficulty hearing with competing and background noise, and the regular use of hearing aids. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on the 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 and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). The Board has carefully considered the Veteran's and his representative's contentions that his hearing loss impacts his activities of daily living. Further, the Board notes the Veteran's general contentions that the current rating criteria do not reflect the impact his hearing loss has on his activities of daily living. However, it must be emphasized that the assignment of a schedular disability rating for hearing impairment is derived by an application of the rating schedule to the numeric designation assigned after valid audiometry results are obtained. Hence, the Board considers the subjective reports of hearing difficulty but places great weight on the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding a compensable rating for the Veteran's service connected bilateral hearing loss disability is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.R. Kardian, 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.