Citation Nr: 21030367 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-32 724 DATE: May 18, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss is manifested by hearing acuity no worse than Level II in his right ear and Level I in his left ear, with no exceptional hearing loss pattern shown in either ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to August 1976. This appeal arose from an April 2014 rating decision. In October 2018, the Board of Veterans' Appeals (Board) granted service connection for tinnitus and remanded the claim for an initial compensable rating for bilateral hearing loss for further evidentiary development. The appeal has now returned to the Board for appellate consideration. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran seeks a higher (or compensable) rating for his bilateral hearing loss. According to the applicable laws and regulations, the rating assigned for hearing loss is determined by a mechanical application of the rating schedule, which is grounded on numeric designations assigned to audiometric examination results. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations of hearing impairment range from 0 to 100 percent based on organic impairment of hearing acuity. Auditory acuity is gauged by examining the results of controlled speech discrimination tests, together with the results of pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hz). To evaluate the degree of disability, the rating schedule establishes 11 auditory acuity levels ranging from Level I, for essentially normal acuity, through Level XI, for profound deafness. Tables VI and VII, as set forth following 38 C.F.R. § 4.85, are used to calculate the rating to be assigned. 38 C.F.R. § 4.85. Consideration is also given for exceptional hearing loss patterns. Specifically, under 38 C.F.R. § 4.86, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) or more, Table VI or Table Via is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Also, when the puretone threshold is 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). According to a VA audiological evaluation completed in January 2014, the Veteran's puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 15 30 35 LEFT 20 15 30 35 Word recognition scores were only indicated for the right ear, which was 96 percent. It was determined that the Veteran had normal hearing up to the 3000 Hertz, and mild hearing loss from 4000 Hertz to 8000 Hertz. It was commented that the Veteran had "nearly normal hearing." See April 2014 VA Medical Treatment Record (CAPRI); January 2021 VA Medical Treatment Record. At the March 2014 VA examination, the Veteran's speech recognition scores were 100 percent in both ears. His puretone thresholds were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 25 50 55 LEFT 15 25 40 55 Puretone threshold averages were 36.25 percent in the right ear and 33.75 in the left ear. Applying the March 2014 examination results to Table VI results in Roman Number I for the Veteran's right ear and I for his left ear. Applying these values to Table VII demonstrates that the rating for the Veteran's bilateral hearing loss is 0 percent. No exceptional hearing loss pattern was shown in either ear. The Board notes that the claims file contains private audiometric testing from August 2013, April 2016, and an undated audiogram received in May 2014. In the August 2013 audiogram, the speech material used to obtain the speech recognition scores was not the Maryland CNC Word List. See July 2014 Private Medical Treatment Record. In the April 2016 audiogram, no speech recognition scores were obtained. See April 2016 Private Medical Treatment Record. On the undated audiogram, speech recognition scores were noted but it was not indicated if Maryland CNC Word List was used. See May 2016 Private Medical Treatment Record. As the Veteran's puretone thresholds did not exhibit exceptional hearing loss in those audiograms, the alternative rating method employing Table VIa is not applicable in this matter. Unfortunately, these results are inadequate for rating purposes. 38 C.F.R. § 4.86(a). At the November 2020 VA Examination, the Veteran's speech recognition scores were 84 percent in the right ear and 92 percent in the left ear. His puretone threshold were as follows: HERTZ 1000 2000 3000 4000 RIGHT 20 20 40 45 LEFT 20 15 40 60 Puretone threshold averages were 31.25 percent in the right ear and 33.75 in the left ear. Applying the November 2020 examination results to Table VI results in Roman Number II for the Veteran's right ear and I for his left ear. Applying these values to Table VII demonstrates that the rating for the Veteran's bilateral hearing loss is 0 percent. No exceptional hearing loss pattern was shown in either ear. After a thorough consideration of the evidence of the record, the Board determines that an initial compensable rating for bilateral hearing loss is not warranted under 38 C.F.R. § 4.485. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hearing loss with the established criteria found in the rating schedule. The Board acknowledges the Veteran's contentions regarding the functional impairment that he experiences as a result of his hearing loss. However, the decibel loss and speech discrimination ranges designated for each level of hearing impairment in Tables VI and VIA were determined in relation to clinical findings of the impairment experienced by Veterans with certain degrees and types of hearing disability. To the extent that it is argued that the schedular rating criteria in general and regulations do not contemplate the functional effects of hearing impairment, the United States Court of Appeals for Veterans Claims (Court) has held that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding" and that, "when 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 (2017). Here, the Veteran describes difficulty understanding people, hearing high frequency voices, and difficulty hearing speech in the background. As found by the Court in Doucette, these symptoms are contemplated by the schedular rating criteria and do not require extraschedular evaluation. Id. Further, the Board acknowledges that the March 2014 VA examination report documents that the Veteran's hearing loss interfered with his ability to perform his job and that he could not hear well on the phone, which was an integral part of his "current career as a real estate broker." Also noted in the examination report was that the Veteran served in the Air Force from October 1967 to July 1982. See March 2014 VA Examination Report for Hearing Loss and Tinnitus. In actuality, the evidence of record indicates this Veteran retired from working at PG&E as an alarm station operator and is not currently employed. Also, he served in the U.S. Navy, not the Air Force. It appears that the information noted in the March 2014 examination report regarding the Veteran's occupation as a real estate broker was misstated or misplaced. While the evidence indicates some occupational effects due to his hearing loss, the evidence does not suggest that the Veteran cannot obtain or maintain substantial gainful employment due to his service-connected hearing loss. Accordingly, the Board declines to infer a claim of entitlement to a total disability rating based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). In summation, the criteria for entitlement to an initial compensable rating for the service-connected bilateral hearing loss have not been met, and entitlement to an increased rating is denied. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. [SIGNATURE ON NEXT PAGE] THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.