Citation Nr: 21030180 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-28 602 DATE: May 18, 2021 ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral ear hearing loss is manifested by hearing acuity no worse than Level II bilaterally, with no exceptional pattern of hearing loss. CONCLUSION OF LAW The criteria for the assignment of a compensable rating for bilateral ear hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1970 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ) who is no longer at the Board. In March 2021, the Veteran was notified that the VLJ who conducted his hearing was no longer available and he was informed of his right to a new hearing. In April 2021, the Veteran indicated that he did not wish to appear at another Board hearing before a different VLJ. The transcript of his September 2019 hearing is of record. The Board remanded this issue in December 2020 for further development. Specifically, the Board instructed the RO to obtain the results of an audiological examination mentioned but not otherwise documented in the Veteran's June 7, 2018 VA medical treatment records. The results of the June 2018 audiological examination have been obtained and associated with the Veteran's claims file. The Board finds that there was substantial compliance with the December 2020 remand directives, and the matter is now properly before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a compensable evaluation for bilateral hearing loss is denied. Throughout the period on appeal, the Veteran has been in receipt of a noncompensable evaluation for his service-connected bilateral hearing loss pursuant to Diagnostic Code 6100. 38 C.F.R. § 4.85. The Veteran contends that he is entitled to a higher disability rating. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). The Rating Schedule provides a table (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on puretone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "puretone threshold average" as used in Table VI, is the sum of the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average determines the Roman numeral designation for hearing impairment from Table VI or Via. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When the puretone threshold at each of the four specified frequencies (1,000, 2,000, 3,000, and 4,000 Hertz) is 55 decibels or more, Table VI or Table Via is to be used, whichever results in the higher Roman numeral. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, Table VI or Table Via is to be used, whichever results in the higher Roman numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). A December 2014 private audiological evaluation notes that puretone thresholds for the Veteran's right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 10, 20, 55, and 55, for an average of 35. Puretone thresholds for the Veteran's left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 10, 55, 55, and 55, for an average of 43.75. The speech recognition score was 88 percent in the right and 92 percent in the left; the type of word recognition test that was used was not specified on the report. On VA audiological examination in June 2015, puretone thresholds for the Veteran's right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 10, 15, 55, and 60, for an average of 35. Puretone thresholds for the Veteran's left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 55, 55 and 60, for an average of 46. The speech recognition score, using the Maryland CNC Test, was 96 percent in the right ear and 86 percent in the left ear. The examination notes that the Veteran reported that his hearing affected his ability to hear certain noises on machinery and his ability to communicate over the radio. Additionally, he had trouble hearing in any kind of outside noise and if multiple people were talking, he was unable to determine the source of the sound. The Veteran's February 2016 notice of disagreement indicates that his hearing had worsened. His wife had observed that his ability to hear had become substantially worse. He was having increased difficulty interpreting what people said. He further expressed that he believed his previous VA examination findings were inaccurate. In his VA Form 9, he further elaborated that his VA examination results were flawed due to the amount of "guessing" he did on the word recognition test. He indicated that the examination took a great deal of time because the examiner would stop to ensure he provided a response on each word. He indicated that his responses would have been different if he would have taken the test in "real time." On VA audiological examination in June 2016, puretone thresholds for the Veteran's right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 35, 60, and 55, for an average of 41. Puretone thresholds for the Veteran's left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 55, 55, and 60, for an average of 46. The speech recognition score, using the Maryland CNC Test, was 96 percent for the right ear and 90 percent for the left ear. The Veteran indicated that he was unable to diagnosis problems in machinery, could not hear co-workers discussing problems, and could not hear the company radio systems. He also noted that he had difficulty hearing if he turned his head and he could not hear animals in the woods. The examination report indicates that special caution was used in administering the word recognition testing on this evaluation as the Veteran had reported that he had to "guess" when responding to the Maryland CNC test on his previous VA examination. After the test was administered, the Veteran affirmed that the presentation level of the phrases was comfortable. The examiner noted that the Veteran responded quickly after hearing the phrases and did not appear to be guessing or having difficulty in hearing; the word recognition scores are believed reliable and are consistent with the scores obtained on the last VA examination. An August 2016 correspondence from the Veteran indicates that he continued to disagree with the results of the VA examination. He indicated that, while the examiner was setting the baseline for the word recognition testing, he had the volume so loud that it was "as if someone was screaming in [his] ears." He indicated that this could not be standard because it was "so different" from the first examination. The Veteran indicated that both examinations were conducted by the same examiner and he took exception to the examiner's methodology because the "test only highlighted that I have to have words yelled at me for me to understand." A March 2018 private audiogram showed puretone thresholds for the Veteran's right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 20, 55, 65, and 65, for an average of 51.25. Puretone thresholds for the Veteran's left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 20, 60, 60, and 65, for an average of 51.25. The speech recognition score, using the Maryland CNC test, was 88 percent in the right ear and 84 percent in the left ear. A June 2018 VA audiological evaluation showed puretone thresholds for the Veteran's right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 20, 45, 65, and 65, for an average of 49. Puretone thresholds for the Veteran's left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 25, 55, 65, and 65, for an average of 52. The speech reignition score was 88 percent in the right ear and 92 percent in the left ear. Notably, the comments associated with these results indicate that the evaluation was not adequate for rating purposes, without further explanation. Additionally, the type of word recognition test that was used was not specified on the report. At his September 2019 Board hearing, the Veteran testified that his hearing loss had gotten worse since his July 2016 VA examination. He reported that he had difficulty hearing and understanding conversation unless the speaker was looking directly at him. He additionally reported difficulty hearing on the phone and hearing cars on the road. He noted that he was unable to wear his right hearing aid constantly due to getting ear infections. Finally, the Veteran asserts that his June 2015 and July 2016 VA examinations were inadequate because the examiner turned the volume up loudly, allowing the Veteran to hear better, thereby skewing the test results. The Veteran's representative speculated that, since it was the same examiner who conducted both examinations, the examiner may have been frustrated having to conduct two separate examinations for the same veteran. On VA audiological examination in March 2020, puretone thresholds for the Veteran's right ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 5, 45, 60, and 70, for an average of 45. Puretone thresholds for the Veteran's left ear, in decibels, at 1000, 2000, 3000, and 4000 Hertz were as follows: 15, 50, 55, and 65, for an average of 46.25. The speech recognition score, using the Maryland CNC Test, was 94 percent bilaterally. The examination notes that the Veteran reported difficulty hearing his company's radio in the service truck, and he had difficulty hearing around other noises; he must face people directly to hear the conversation. As an initial matter, the Board recognizes the Veteran's contention that his June 2015 and June 2016 VA examinations were inadequate. However, the Board finds that the VA examiner considered the Veteran's lay statements and was a state-licensed audiologist; the examination included a Maryland CNC test and a puretone audiometry test. Moreover, the Board notes that the examination report does not indicate that there were inconsistent or inadequate results due to the Veteran's responses during testing, nor did the examiner indicate that the speech recognition testing was inappropriate for the Veteran. Furthermore, in the June 2016 VA examination report, the examiner specifically noted the Veteran's concerns regarding the speech recognition testing in the previous examination and indicated that the Veteran had affirmed that the presentation level was comfortable. The examiner determined that the word recognition scores were believed reliable and were consistent with the scores obtained on the last VA examination. There is nothing in the record that suggests that the Veteran was treated differently than others or that the examiner was otherwise biased against him, nor has the Veteran provided any evidence of such. Additionally, to the extent that the Veteran disagrees with the findings of the VA examiner, the Board does not find the examination is inadequate merely because the examiner did not provide favorable findings. Furthermore, to the extent that the Veteran has expressed disagreement with the method for testing his hearing loss disability, the Board notes that there is no evidence in the record showing that the Veteran has the medical or audiological training, credentials, or other expertise to competently conclude that his audiological examination was conducted with inaccurate standards. Therefore, for all of these reasons, the Board finds that the June 2015 and June 2016 VA examinations are adequate for rating purposes. Turning to the evidence of record, the Board initially notes that neither the December 2014 nor June 2018 audiological evaluations indicate that speech recognition scores were conducted using the Maryland CNC test. For VA rating purposes, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85(a). It must be conducted by a state-licensed audiologist; the examination must include a Maryland CNC test and a puretone audiometry test; and the examination must be conducted without the use of hearing aids. As neither evaluation specified the type of speech discrimination test that was used, the Board finds that these evaluations are inadequate for purposes of deciding the Veteran's claim on appeal. See 38 C.F.R. § 4.85. Evaluating the June 2015 VA audiological test results cited above, the Board finds that, when the puretone threshold averages and the speech recognition scores from the VA examination are applied to Table VI, the numeric designation of hearing impairment is Level I in the right ear and Level II in the left ear. When the numeric designation for the right ear is considered together with the left ear and applied to Table VII (Percentage Evaluation for Hearing Impairment-Diagnostic Code 6100), the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. 38 C.F.R. § 4.85, DC 6100. Evaluating the June 2016 VA audiological test results cited above, the Board finds that, when the puretone threshold averages and the speech recognition scores from the VA examination are applied to Table VI, the numeric designation of hearing impairment is Level I for the right ear and Level II for the left ear. When the numeric designation for the right ear is considered together with the left ear and applied to Table VII, the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. Id. Regarding the March 2018 private audiological test results, the Board finds that, when the puretone threshold averages and the speech recognition scores from the evaluation are applied to Table VI, the numeric designation of hearing impairment is Level II bilaterally. When the numeric designation for the right ear is considered together with the left ear and applied to Table VII, the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. Id. Finally, evaluating the March 2020 VA audiological test results, the Board finds that, when the puretone threshold averages and the speech recognition scores from the VA examination are applied to Table VI, the numeric designation of hearing impairment is Level I bilaterally. When the numeric designation for the right ear is considered together with the left ear and applied to Table VII, the percentage of disability for hearing impairment is zero percent, and a compensable rating is therefore not warranted. Id. Throughout the period on appeal, the provisions of 38 C.F.R. § 4.86, which address exceptional patterns of hearing loss, are not applicable. There is no showing that the Veteran had an exceptional pattern of hearing loss in either ear at any time during this appeal period. Thus, the probative audiometric examinations conducted during the period on appeal show that the Veteran's service-connected bilateral hearing loss equates to no more than a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100. Consideration has been given to the functional effects of the Veteran's bilateral hearing loss. The June 2015 VA examination notes that the Veteran reported that his hearing affected his ability to hear certain noises on machinery and his ability to communicate over the radio. Additionally, he had trouble hearing in any kind of outside noise, and if multiple people were talking, he was unable to determine the source of the sound. The June 2016 VA examination notes that the Veteran reported that he was unable to diagnosis problems in machinery, could not hear co-workers discussing problems, and could not hear the company radio systems. He also noted that he had difficulty hearing if he turned his head and he could not hear animals in the woods. The March 2020 VA examination notes that the Veteran reported difficulty hearing his company's radio in the service truck, and he had difficulty hearing around other noises; he must face people directly in order to hear the conversation. The Veteran has additionally reported that he had difficulty hearing on the phone and hearing cars on the road. The rating criteria contemplates the Veteran's reported decreased hearing acuity and difficulty in understanding conversational speech. "[W]hen a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). The Board finds that other than difficulty hearing, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss not contemplated by the rating criteria. See Mittleider v. West, 11 Vet. App. 181 (1998). Thus, the Board finds that the functional effects of the Veteran's bilateral hearing loss disability are adequately addressed by the rating assigned. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). Moreover, to the extent that the Veteran has indicated that he has additional ear problems resulting in the inability to wear his hearing aids consistently due to ear infections, the Board notes that the Veteran is currently service-connected for recurrent bilateral otitis externa. Providing a higher rating for his bilateral hearing loss as a result of his service-connected bilateral otitis externa would be tantamount to impermissible pyramiding. See 38 C.F.R. § 4.14. Although the Board recognizes that the Veteran may have difficulty hearing, as noted above, the evaluation of hearing loss is reached by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann, 3 Vet. App. at 345. The requirements of 38 C.F.R. § 4.85 set out the percentage ratings for exact numerical levels of impairment required for an evaluation of hearing loss, which requires specific testing. In this case, such mechanical application does not warrant a compensable rating. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a compensable rating for the service-connected bilateral hearing loss. This claim, therefore, must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.