Citation Nr: 21032362 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-14 311 DATE: May 26, 2021 ORDER An initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level II in the left ear over the period on appeal. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1970 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2018 at which time it was remanded for further development including providing the Veteran with another VA examination and attempting to obtain private treatment records. As the development has been completed, the Board finds substantial compliance with its prior directive and will move forward with adjudication of the issue. In June 2018, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the virtual file and reviewed. Entitlement to an initial compensable rating for bilateral hearing loss The Veteran seeks a compensable rating for his bilateral hearing loss. At his 2018 Board hearing, he stated that he had trouble differentiating voices in a group and could not hear certain frequencies. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran underwent a July 2013 VA examination. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: July 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 25 90 95 56.25 96% LEFT 10 20 70 85 46.25 100% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In May 2018 correspondence, a private audiologist reported that test results revealed a bilateral precipitously sloping profound sensorineural hearing loss. The Veteran reported having trouble understanding people, especially with background noise. He regularly asked people to repeat themselves and had trouble filling in the blanks in a conversation if he could not see their face. An October 2019 VA examination reveals that the Veteran reported that he had difficulty hearing voices, especially in group settings. He struggled to hear certain alarms, notifications, and during phone conversations. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: October 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 30 90 95 62.50 84% LEFT 30 30 70 90 55 84% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including having difficulty understanding people, especially with background noise and in group settings. He also struggled to hear certain alarms, notifications, and during phone conversations. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on 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 issue of consideration of an extraschedular rating was raised by the Veteran's representative in an April 2021 appellate brief. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. 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. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In this case, the rating criteria for hearing loss contemplate the functional effects of having difficulty understanding people, especially with background noise and in group settings. The criteria also contemplate his struggle to hear certain alarms, notifications, and during phone conversations. The threshold issue under Thun is thus is not met, and further consideration of an extraschedular rating is not warranted. (Continued on the next page) Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cruz, 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.