Citation Nr: 21032850 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 17-66 864 DATE: May 28, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to April 16, 2018 is denied. Entitlement to a rating in excess of 50 percent for bilateral hearing loss from April 16, 2018 and continuing thereafter is denied. FINDINGS OF FACT 1. Prior to April 16, 2018, the Veteran's hearing loss was manifested by hearing acuity of no worse than Level I hearing impairment in the right ear and Level I hearing impairment in the left ear. 2. From April 16, 2018, the Veteran's hearing loss was manifested by hearing acuity of no worse than Level VIII hearing impairment in the right ear and Level VIII hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for bilateral hearing loss prior to April 16, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. 2. The criteria for a rating in excess of 50 percent for bilateral hearing loss from April 16, 2018 and continuing thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from September 1960 to November 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from December 2013 and June 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. This case was before the Board in February 2019. The Veteran's claims were remanded for additional development. The case is now again before the Board for further appellate action. 1. Entitlement to a compensable rating for bilateral hearing loss prior to April 16, 2018 is denied. 2. Entitlement to a rating in excess of 50 percent for bilateral hearing loss from April 16, 2018 and continuing thereafter is denied. In December 2012, the Veteran filed a claim for an increased rating for his service-connected bilateral hearing loss. By rating action of December 2013, the RO denied an increased rating and maintained a noncompensable rating for his bilateral hearing loss. By rating action of June 2018, the RO increased the rating to 50 percent, effective April 16, 2018. The Veteran disagrees with the assigned ratings for bilateral hearing loss and seeks higher ratings under 38 C.F.R. § 4.85, Diagnostic Code 6100. In February 2019, the Board remanded the Veteran's claims for further development. The Board noted that the record includes December 2017 private hearing test reports from Costco and Sam's Club. Results of the December 2017 Costco hearing test were provided in graphic form without interpretation as to the exact puretone thresholds found at the appropriate frequencies and included results using the NU-6 auditory test, not the Maryland CNC. The Sam's Club audiometry results did not indicate whether Maryland CNC was used. The Board directed the RO to contact the Veteran and request that he provide VA sufficient information and authorization to obtain clarification of the December 2017 hearing tests from Costco and Sam's Club. In September 2019, the Veteran was sent correspondence requesting authorization to obtain clarification of the December 2017 hearing tests from Costco and Sam's Club. In June 2020, the Veteran was sent correspondence requesting the completion of the VA Form 21-4142a with Costco and Sam's Club identified to give VA authorization to obtain clarification of the December 2017 hearing tests. However, the Veteran did not provide a completed VA Form 21-4142a. Although VA has a statutory duty to assist in developing evidence pertinent to a claim, a veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, the Board finds that VA has satisfied its duty to assist in the development of the increased rating claims and has sufficiently complied with the terms of the Board's prior remand. At present, the claim has been returned to the Board for additional adjudicative action. As the Veteran failed to provide the requested completed form, there is no prejudice in adjudicating the claim. The assigned ratings for hearing loss are determined by mechanically applying the rating criteria to certified test results. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Under Diagnostic Code 6100, ratings for hearing loss are determined in accordance with the findings obtained on audiometric examination. 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 Hertz (cycles per second). To evaluate the degree of disability from 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. As set forth in the regulations, Tables VI, VIa, and VII are used to calculate the rating to be assigned. See 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 Veteran received a VA audio examination in October 2013. A VA authorized audiological evaluation revealed pure tone thresholds, in decibels, for the right ear at 20 (500 Hz), 35 (1000 Hz), 55 (2000 Hz), 60 (3000 Hz), 65 (4000 Hz), and for the left ear at 15 (500 Hz), 25 (1000 Hz), 45 (2000 Hz), 50 (3000 Hz), 55 (4000 Hz). Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 94 percent in the left ear. The examiner reported that the Veteran's hearing loss impacted ordinary conditions of life, including ability to work. The examiner documented that the Veteran reported difficulty understanding speech. Based on the October 2013 audiogram results, with the utilization of Table VI, the Veteran has Level I hearing impairment in the right ear and Level I hearing impairment in the left ear. Application of those findings to Table VII, results in a noncompensable disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. At the Veteran's November 2018 Board hearing, he testified that "No words were presented to me to repeat [at the October 2013 VA examination] so I don't know how they got the 94" for the speech discrimination score. However, after the issuance of the December 2013 rating decision, which described the speech discrimination results of the October 2013 VA examination, the Veteran filed a notice of disagreement to the disability rating assigned by the December 2013 rating decision. The Board notes that the Veteran's notice of disagreement did not provide any statements regarding anomalies with the speech discrimination testing at the October 2013 VA audiology examination. Therefore, the Board does not find the Veteran's hindsight recollections made at his November 2018 Board hearing regarding the October 2013 examiner's failure to administer speech discrimination testing to be credible. In March 2017, the Veteran was provided a VA audio evaluation after he had requested an appointment due to increasing difficulty understanding conversational speech. A VA audiological evaluation revealed pure tone thresholds, in decibels, for the right ear at 25 (500 Hz), 45 (1000 Hz), 65 (2000 Hz), 65 (3000 Hz), 70 (4000 Hz), and for the left ear at 30 (500 Hz), 40 (1000 Hz), 55 (2000 Hz), 55 (3000 Hz), 60 (4000 Hz). Speech audiometry using the revealed speech recognition ability of 72 percent in the right ear and 76 percent in the left ear using the NU-6 auditory test, not the Maryland CNC. While the report demonstrates puretone threshold testing, the speech recognition scores clearly indicate that they were from the NU-6 auditory test. As the Maryland CNC controlled speech test was not used, as is required for rating a hearing loss disability under 38 C.F.R. § 4.85, the March 2017 evaluation is invalid for rating purposes. The Veteran received a VA audio examination in April 2018. A VA authorized audiological evaluation revealed pure tone thresholds, in decibels, for the right ear at 25 (500 Hz), 45 (1000 Hz), 60 (2000 Hz), 65 (3000 Hz), 65 (4000 Hz), and for the left ear at 30 (500 Hz), 40 (1000 Hz), 50 (2000 Hz), 60 (3000 Hz), 65 (4000 Hz). Speech audiometry revealed speech recognition ability of 44 percent in the right ear and 36 percent in the left ear. The VA examiner indicated that the Veteran's hearing loss impacts ordinary conditions of daily life, including the ability to work. The Veteran described the functional impact of his hearing loss as "misses words, difficulty understanding conversation in background noise and groups, TV has to be loud." Based on the April 2018 audiogram results, with the utilization of Table VI, the Veteran has Level VIII hearing impairment in the right ear and Level VIII hearing impairment in the left ear. Application of those findings to Table VII, results in a 50 percent disability rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. At no time during the appeal period has the Veteran's hearing loss disability been shown to rise to the level of symptomatology required to support higher disability ratings than those assigned. The evaluation for hearing loss is based on objective testing. Thus, the objective VA examination report does not support an assignment of a disability rating in excess of what the Regional Office has already awarded a noncompensable rating for the period prior to April 6, 2018 and a 50 percent rating for the period from April 6, 2018. As such, higher ratings are not warranted. Although the Board does not doubt the sincerity of the Veteran's belief regarding the severity of his hearing loss, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The Board in no way discounts the difficulties the Veteran experiences as a result of his hearing loss. However, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Therefore, the Board has no discretion and must make a finding on the rating schedule based on the results of the audiological evaluations of record. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In November 2020, the Veteran's representative submitted correspondence in which he reported that the Veteran's speech recognition scores had fluctuated each time he has been tested over the years, yet pure tone testing had returned consistent results, indicating a gradual worsening since at least 2011. Therefore, the Veteran's representative contends that the Veteran is entitled to an extra-schedular rating because the Veteran's "particular hearing loss, at least from a testing standpoint is unusual." The VA Schedule of Disability Ratings will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The Board notes that, in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), the Court held that, relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. The Court's rationale in requiring an examiner to consider the functional effects of a Veteran's hearing loss disability involves the potential application of 38 C.F.R. § 3.321(b) in considering whether referral for an extra-schedular rating is warranted. Specifically, the Court noted that, "[u]nlike the rating schedule for hearing loss, 38 C.F.R. § 3.321(b) does not rely exclusively on objective test results to determine whether a referral for an extra[-]schedular rating is warranted. The Secretary's policy [requiring VA audiologists to describe the effect of a hearing disability on a Veteran's occupational functioning and daily activities] facilitates such determinations by requiring VA audiologists to provide information in anticipation of its possible application." Martinak, 21 Vet. App. at 455. According to the most recent VA examination of record, conducted in April 2018, the VA examiner indicated that the Veteran's hearing loss impacts ordinary conditions of daily life, including the ability to work. The Veteran described the functional impact of his hearing loss as "misses words, difficulty understanding conversation in background noise and groups, TV has to be loud." The Board finds that both the Veteran and the VA examiner described impairment which is not exceptional or unusual. Rather, difficulty hearing is the type of impairment directly anticipated with a grant of service connection for hearing loss. Moreover, there is no evidence of any marked interference with employment or frequent hospitalization secondary to the Veteran's service-connected hearing loss disability. 38 C.F.R. § 3.321(b)(1). Therefore, a referral for extra-schedular consideration is therefore not required. In conclusion, the preponderance of the evidence is against a compensable rating for the period prior to April 6, 2018 and a rating in excess of 50 percent rating for the period from April 6, 2018. As a preponderance of the evidence is against the award of increased disability ratings, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.