Citation Nr: 21031899 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-44 406 DATE: May 24, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the period on appeal, the Veteran's bilateral hearing loss has been manifested by hearing acuity no worse than Level I hearing in the right ear and Level I hearing in the left ear. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1976 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board issued a remand in November 2019 instructing the RO to obtain a VA examination to determine the level of severity of the Veteran's bilateral hearing loss. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained December 2019 VA audiology examination. The Board finds the RO substantially complied with the November 2019 remand directives. Entitlement to a compensable rating for bilateral hearing loss The Veteran is currently service connected for bilateral hearing with a noncompensable rating effective December 23, 2012, under 38 C.F.R. § 4.86, Diagnostic Code 6100. The Veteran contends that she is entitled to a higher disability rating because the severity of her symptoms has increased. On an August 2016 VA Form 9, the Veteran wrote that her doctor told her that she needs hearing aids and she has significant hearing loss in both ears. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under Diagnostic Code 6100, the assignment of disability ratings for service-connected hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz. The Rating Schedule establishes eleven auditory acuity levels designated from Level I to Level XI for profound deafness. 38 C.F.R. § 4.85. In certain situations, the Rating Schedule provides for rating exceptional patterns of hearing impairment. 38 C.F.R. § 4.86. When the pure tone thresholds at the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz are 55 decibels or more under 38 C.F.R. § 4.86 (a), or when the pure tone thresholds are 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz under 38 C.F.R. § 4.86 (b), the Roman numeral designation for hearing impairment will be determined from either Table VI or Table VIA, whichever results in the higher numeral. That numeral will then be elevated to the next highest Roman numeral under 38 C.F.R. § 4.86 (b). Id. Post-service treatment records show the Veteran's hearing loss is stable; however, the need for hearing aids is ongoing. See e.g., April 2014 Primary Care Note (no hearing loss); August 2016 Primary Care Note (no change in hearing); July 2018 Primary Care Note (hearing grossly intact); March 2019 Primary Care Note (wears hearing aids, has loss of hearing); February 2020 Primary Care Note (hearing intact); March 2020 Primary Care Note (hearing stable). The Veteran has undergone three VA examinations since the effective date of her service connection for bilateral hearing loss. Collectively and individually, the examinations demonstrate that the Veteran's hearing loss does not warrant a compensable rating. In July 2014, the Veteran underwent a VA audiology examination. Puretone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 30 30 35 25 LEFT 35 35 30 35 30 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 30 decibels for the right ear and 32.5 decibels the left ear. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and 94 percent in the left ear using the Maryland CNC word lists. Applying the above results from the July 2014 VA examination to the Rating Schedule, shows Level I for the right ear and Level I for the left ear. See 38 C.F.R. § 4.85, Table VI. Applying these findings to Table VII of the Rating Schedule provides a 0 percent evaluation for bilateral hearing loss. In July 2016, the Veteran underwent a VA audiology examination. Puretone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 50 40 40 45 40 LEFT 40 45 40 55 45 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 41.25 decibels for the right ear and 46.25 decibels the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 94 percent in the left ear using the Maryland CNC word lists. Applying the above results from the July 2016 VA examination to the Rating Schedule, shows Level I for the right ear and Level I for the left ear. Applying these findings to Table VII of the Rating Schedule provides a 0 percent evaluation for bilateral hearing loss. In December 2019, the Veran underwent a VA audiology examination. Puretone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 45 50 LEFT 30 40 35 45 45 The average pure tone threshold at 1,000, 2,000, 3,000, and 4,000 Hertz was 43.75 decibels for the right ear and 41.25 decibels the left ear. Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 100 percent in the left ear using the Maryland CNC word lists. Applying the above results from the December 2019 VA examination to the Rating Schedule, shows Level I for the right ear and Level I for the left ear. Applying these findings to Table VII of the Rating Schedule provides a 0 percent evaluation for bilateral hearing loss. Initially, the Board acknowledges the Veteran's argument that her hearing loss is much worse and that without her hearing aids she had great difficulty in understanding and hearing people. However, 38 C.F.R. §§ 4.85, 4.86, does not contain reference to hearing aids, except that "[e]xaminations will be conducted without the use of the hearing aids." The Board finds that there is no evidence that the Veteran's hearing aids were used during the examinations. Therefore, the findings are based on her hearing loss without the use of hearing aids, which show some hearing loss, but not enough to warrant a higher compensable rating. Overall, the Board is cognizant that the Veteran is competent to attest to things she experiences through her senses, such as decreased hearing acuity. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's statements are competent evidence to report her increased audiological symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). She is also credible in her believe that she is entitled to increased evaluations. However, the more probative evidence of record does not indicate that the assignment of any increased evaluation for hearing loss is warranted. In so finding, the Board notes that it weighed the lay and medical evidence and finds more probative certain opinions rendered by medical professionals given their expertise in evaluating audiological disorders. Based on the foregoing discussion, the evidence of record showed no distinct periods of time during the appeal period when the Veteran's service-connected bilateral hearing loss varied to such an extent that a higher rating would be warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the assignment of any additional higher evaluations for the Veteran's service-connected bilateral hearing loss, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris, Attorney Advisor 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.