Citation Nr: 21031937 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-04 200A DATE: May 25, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss is manifested by numeric designations of hearing impairment no greater than Level II for either ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1973 to November 1994. This case comes before the Board of Veteran's Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran had a videoconference Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. In February 2019, the Board remanded the issue on appeal for additional development. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). During the pendency of the appeal, the RO granted service connection for a respiratory disability, which is a full grant of the benefits sought on appeal; therefore, the issue of service connection for a respiratory disability is not before the Board. See February 2021 rating decision. In March 2021, the Veteran was notified that the VLJ who conducted the September 2018 hearing was no longer with the Board and informed him that he could request a new hearing. He did not respond to the letter and the Board will proceed accordingly. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in July 2012. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. On February 2021 statement, the Veteran asked for an extension from the RO to submit additional evidence. However, to date the Veteran has not submitted any additional evidence. Accordingly, the Board finds it can proceed on the available evidence. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the examination ordered in the February 2019 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the applicable criteria, ratings for bilateral hearing loss are determined in accordance with the findings reported at audiometric examinations. Evaluations of hearing impairment 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 cycles per second. To evaluate the degree of disability from bilateral hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. The regulations include special provisions for evaluating exceptional patterns of hearing impairment: (a) When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the pure tone threshold is 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. In a June 2011 private audiological evaluation, the Veteran reported that he had difficulty communicating in noisy environments, while watching television, and when using the telephone. Puretone thresholds were not reported but speech discrimination scores were reported to be 100 percent in the right ear and 96 percent in the left ear. In April 2012, the Veteran was afforded a VA audiological examination. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 Average Right 20 25 25 35 55 35 Left 25 30 25 30 45 32 The average decibel loss in the left ear was 32 and for the right ear 35. Speech recognition scores were 90 percent in the right ear and 88 percent in the left ear. The examiner opined that the Veteran's hearing loss impacted his ability to work. The Veteran reported that it was hard for him to hear his customers. He noted that his wife got annoyed with him because of he could not hear her. The April 2012 examination results, when applied to Table VI, correspond to a level II designation (between 0 and 41 average pure tone decibel hearing loss, with between 84 and 90 percent speech discrimination) for the right ear, and a level I designation (between 0 and 41 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination) for the left ear. Under Table VII, a level II designation for the poorer ear combined with a level I designation for the better ear, warrants the assignment of a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. In September 2018, the Veteran testified that he was not able to hear his wife even when she was standing in front of him. The Veteran's spouse testified that he increased the volume on electronic devices to hear. In September 2018, the Veteran submitted a private audiogram seeking a compensable evaluation for his disability. The private examination, however, did not provide necessary information for rating purposes. The average decibel loss was not provided and did not indicate that the Maryland CNC word list was used to determine speech recognition scores, for example. See 38 C.F.R. § 4.85 (a). In September 2019, the Veteran was afforded another VA audiological examination regarding the severity of his hearing loss. Pure tone thresholds, in decibels, were reported as follows: HERTZ 500 1000 2000 3000 4000 Average Right 25 35 40 45 70 47.5 Left 30 35 35 45 75 47.5 The average decibel loss in the left ear was 47.5 (48) and for the right ear 47.5 (48). Speech recognition scores were 98 percent in the right ear and 96 percent in the left ear. The examiner opined that the Veteran's hearing loss impacted ordinary conditions of daily life, including the ability to work. The examiner noted that the Veteran could not hear people talk. The September 2019 examination results, when applied to Table VI, correspond to a level I designation (between 42 and 49 average pure tone decibel hearing loss, with between 92 and 100 percent speech discrimination) for both ears. Under Table VII, a level I designation for the poorer ear combined with a level I designation for the better ear, warrants the assignment of a noncompensable rating. See 38 C.F.R. § 4.85, DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. VA treatment records also demonstrate that the Veteran reports symptoms of hearing loss and difficulty hearing during the condition of daily life. Unfortunately, the Board finds that none of the competent evidence of record documents that the Veteran's hearing loss warrants a compensable evaluation during the period on appeal. The Board notes that both valid tests of record support a noncompensable rating for the Veteran's hearing loss disability. The Board finds that the Veteran's hearing impairments are contemplated by his currently assigned noncompensable rating. The Board has considered the Veteran's reports of how his hearing loss disability has affected his daily functioning, including his statements that he has had difficulty hearing the television, communicating with others in environments with noises in the background and that he cannot understand things said by his wife despite close proximity to him. The United States Court of Appeals for Veterans Claims has specifically held, however, that the rating criteria for a hearing loss disability contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In essence, VA's audiological examinations are designed for purposes of obtaining information necessary for the full and accurate application of the "Percentage Evaluation for Hearing Impairment" tables, which are based exclusively on the results provided from two objective tests namely, a pure tone audiometry test and a speech discrimination test. See 38 C.F.R. § 4.85. The Veteran has not offered any evidence demonstrating that the testing method used produced inaccurate, misleading, or clinically unacceptable results. Here, the Board finds that the objective clinical findings outweigh the Veteran's lay assertions that a compensable evaluation is warranted. It must be emphasized that the assignment of a disability rating for bilateral hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. (Continued on the next page) In sum, the Board concludes that a compensable rating for the Veteran's bilateral hearing loss disability is not warranted during the appeal period. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, DC 6100. As the preponderance of the evidence is against the Veteran's claim for a compensable disability rating, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.