Citation Nr: 21039723 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-59 661 DATE: July 1, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's hearing loss was manifested by hearing acuity of no worse than Level II hearing impairment in the right ear and Level II hearing impairment in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for bilateral hearing loss 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1972 to August 1974 and September 1978 to September 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Entitlement to a compensable rating for bilateral hearing loss is denied. In August 2014, the Veteran filed a claim for an increased rating for his service-connected bilateral hearing loss. By rating action of November 2014, the RO denied an increased rating and maintained a noncompensable rating for his bilateral hearing loss. The Veteran disagrees with the assigned rating for bilateral hearing loss and seeks a higher rating under 38 C.F.R. § 4.85, Diagnostic Code 6100. 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 November 2014. A VA audiological evaluation revealed pure tone thresholds, in decibels, for the right ear at 30 (500 Hz), 30 (1000 Hz), 35 (2000 Hz), 35 (3000 Hz), 30 (4000 Hz), and for the left ear at 30 (500 Hz), 35 (1000 Hz), 35 (2000 Hz), 35 (3000 Hz), 35 (4000 Hz). Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 88 percent in the left ear. The examiner reported that the Veteran's hearing loss impacted ordinary conditions of life, including the ability to work. The examiner documented that the Veteran reported increased difficulty understanding those around him. It was also reported that the Veteran currently uses amplification. Based on the November 2014 audiogram results, with the utilization of Table VI, the Veteran has Level II hearing impairment in the right ear and Level II 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 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 a higher rating. 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 has already been awarded a noncompensable rating for the entirety of the appeal period. As such, a compensable rating is 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 evaluation 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 December 2016, the Veteran's representative submitted a substantive appeal, VA Form 9, in which he contends that an extraschedular rating must be considered due to the Veteran's report that he experienced increased difficulty in understanding those around him even with amplification. At the Veteran's March 2021 Board hearing, he testified that he needs to turn up the volume on his radio and television and at times asks his wife or children to repeat themselves. He stated that at times his wife will tell him he needs his hearing aids because he cannot hear. He also testified that he sometimes has difficulty hearing with his hearing aids. 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 extraschedular 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 extraschedular 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 November 2014, the VA examiner indicated that the Veteran's hearing loss impacts ordinary conditions of daily life, including the ability to work. The examiner documented that the Veteran reported increased difficulty understanding those around him. It was also reported that the Veteran currently uses amplification. At his March 2021 Board hearing, the Veteran also described difficulties with hearing, even sometimes with his hearing aids. 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 on appeal. As a preponderance of the evidence is against the award of an increased rating, 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.