Citation Nr: 21040028 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-54 710 DATE: July 2, 2021 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran has, at its highest degree of severity, Level I hearing acuity in both ears. CONCLUSION OF LAW The criteria for a compensable schedular rating for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.31, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December1977 to December 1980 and was in the Reserves from January 1981 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran withdrew his request for a live videoconference hearing. This matter was most recently before the Board in March 2019, at which time it was remanded so that a VA examination could be provided to determine the current severity of his bilateral hearing loss. VA examined the Veteran in December 2019. See December 2019 Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBQ). Thus, the requested development has been accomplished and the matter has returned to the Board for further appellate consideration. . Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluations. Ratings for 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 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 criteria, an adequate evaluation of impairment of hearing acuity VII. See 38 C.F.R. § 4.85. As noted above, under VA rating rests upon the results of controlled speech discrimination tests, together with tests of the average hearing threshold levels at certain specified frequencies. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Pertinent case law provides that the assignment of disability ratings for hearing impairment is to be derived by the mechanical application of the Ratings Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Exceptional patterns of hearing impairment are evaluated under 38 C.F.R. § 4.86. (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. Each ear will be evaluated separately. The Veteran seeks a compensable rating for his bilateral hearing loss disability, contending that it is more severe than currently rated. The Board finds that the weight of the evidence is against a compensable rating for the service-connected bilateral hearing loss disability. As noted, VA evaluates hearing loss based on the results of audiometric testing. Here, the pertinent evidence includes November 2012 and December 2019 VA audiological evaluations. On audiometric testing in November 2012, pure tone thresholds, in decibels, and speech recognition scores were reported as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 15 15 25 25 20 94 LEFT 15 20 50 35 30 100 A review of the November 2012 audiometric examination, and using the speech discrimination scores from the audiogram, correlates to Level I hearing in both ears. 38 C.F.R. § 4.85, Table VI. Neither the Veteran's right nor left ear qualifies as an exceptional pattern of hearing loss. 38 C.F.R. § 4.86. The combination of Level I in both ears corresponds to a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. The Veteran also submitted the results of a VA audiological evaluation in February 2019. A controlled speech discrimination test (Maryland CNC) was not included. A valid hearing examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and include a controlled speech discrimination test (Maryland CNC). The February 2019 audiometric report did not include a controlled speech discrimination test using Maryland CNC, using the NU-6 word list instead. In short, the February 2019 audiological evaluation is not adequate for VA rating purposes. The Board notes that the average puretone threshold average was 25 in both ears. In December 2019, VA reexamined the Veteran to determine the severity of his hearing loss disability pursuant to the Board's March 2019 remand directives. On audiometric testing, pure tone thresholds, in decibels, and speech recognition scores were reported as follows: HERTZ CNC 1000 2000 3000 4000 Avg % RIGHT 10 15 40 40 26 98 LEFT 10 25 45 40 30 98 A review of the December 2019 audiometric examination, and using the speech discrimination scores from the audiogram, correlates to Level I hearing in both ears. 38 C.F.R. § 4.85, Table VI. Neither the Veteran's right nor left ear qualifies as an exceptional pattern of hearing loss. 38 C.F.R. § 4.86. The combination of Level I in both ears mandates the assignment of a noncompensable disability rating. 38 C.F.R. § 4.85, Table VII. The December 2019 VA audiologist also noted that the Veteran's bilateral hearing loss had impacted his ordinary conditions of life in that he had had to often ask people to repeat themselves, and that it was difficult to make out what people were saying to him without his hearing aids. See December 2019 VA Hearing Loss and Tinnitus Disability Benefits Questionnaire (DBA) at page (pg.) 4)). See Martinak v. Nicholson, 21 Vet. App. 447 (2007). However, these are the effects that one would expect from a hearing disability and do not represent an exceptional hearing disability. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, in this case, while the Veteran is competent to report observable symptoms of his hearing loss, such as difficulty understanding speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percent evaluation under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise in conducting audiometric testing. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Board is sympathetic to the Veteran's assertions that he has difficulty hearing, the VA rating criteria are definitive and provide for a precise result based on audiometric test results. His subjective report of difficulty hearing under situational circumstances unfortunately cannot be the basis for an evaluative rating. The Board is bound to apply the VA rating schedule, under which the rating criteria are defined by audiometric test findings involving hearing acuity in a controlled laboratory environment. The rating criteria are designed to evaluate difficulty hearing, the complaint put forth by the Veteran. Accordingly, after a review of the evidence the Board finds that the weight of the evidence is against a finding that the service-connected bilateral hearing loss disability warrants a compensable rating during the appeal period. As the preponderance of the evidence is against the claim, the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.