Citation Nr: 21040753 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-59 563 DATE: July 6, 2021 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT Since March 1, 2016, the Veteran's bilateral sensorineural hearing loss has been manifested by auditory acuity no worse than a Level II hearing impairment for the right ear and a Level I hearing impairment for the left ear. CONCLUSION OF LAW Since March 1, 2016, the criteria for an initial compensable disability rating for bilateral sensorineural hearing loss have not been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1968 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision granted service connection for bilateral hearing loss and assigned a noncompensable (zero percent) rating from the effective date, March 1, 2016. The matter first appeared before the Board in December 2018 at which time the issue was remanded to obtain outstanding VA and private treatment records and a new VA examination. Further, as noted in the December 2018 Board remand, the Veteran requested an in-person hearing before a Veterans Law Judge at the local RO on his substantive appeal. However, in a statement received February 24, 2017, the Veteran withdrew his hearing request. Accordingly, the Board considered the hearing request withdrawn. See 38 C.F.R.§ 20.702(d). Additionally, after the December 2018 Board remand directed the RO to obtain outstanding treatment records, additional VA medical center (VAMC) treatment records were associated with the claims file. Further, although the Veteran again filed a claim for an increased rating for the disability on appeal in April 2019, and noted receiving treatment from E.C. and J.M., in September 2019, the Veteran was provided a subsequent development letter, requesting that he identify all outstanding private treatment records, providing the name and address of each provider and the dates of treatment, and to complete and return the enclosed VA Form 21-4142, Authorization to Disclose Information and VA Form 21-4142a, General Release for Medical Provider Information, so that treatment records on his behalf could be obtained. However, the record reflects that the Veteran did not return the requested information. Thus, the Board finds that the VA's duty to assist has been fulfilled. See 38 U.S.C. § 5103A, 38 C.F.R. § 3.159. Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. The Veteran contends that he is entitled to a higher rating for his service-connected bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If the earlier date that the claimed increase in disability had occurred was factually ascertainable based on all evidence of record within one year prior to the receipt of claim, the effective date is the date such increase occurred. 38 C.F.R. § 3.400(o)(2). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. 38 C.F.R. § 4.2. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10. Evaluations of defective hearing are based on organic impairment of hearing acuity, as measured by the results of controlled speech discrimination testing (the Maryland consonant-vowel nucleus-consonant (CNC)), together with the average hearing threshold level, as measured by puretone audiometry tests, in the frequencies 1,000, 2,000, 3,000 and 4,000 Hertz. See 38 C.F.R. § 4.85, DC 6100. To evaluate the degree of disability from defective hearing, the rating schedule requires assignment of a Roman numeral designation, ranging from I to XI. Id. Pursuant to the VA rating schedule, the assignment of a disability rating for hearing impairment is derived by a purely mechanical application of the rating schedule to the numeric designations derived from the results of audiometric evaluations. Martinak v. Nicholson, 21 Vet. App. 447 (2007). Examination reports are required to include full descriptions of the functional effects caused by a hearing disability. Id. at 455. 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 puretone 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). When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Turning to the medical evidence of record, the Veteran underwent VA examinations in March 2016, February 2017, May 2019 and last in November 2019. The March 2016 VA examination reveals a diagnosis of bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss impacts the ordinary conditions of daily life, including, ability to work of which the Veteran described as having difficulty understanding speech in noise and groups. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 20 45 85 43.75 94% LEFT 25 20 55 60 40.00 96% 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 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 DC 6100. The Board has considered whether there is an exceptional pattern of hearing at 1000, 2000, 3000, and 4000 Hertz) under 38 C.F.R. § 4.86(a). However, although the Veteran's right ear threshold was 85 decibels at 4000 Hertz and his left ear thresholds were 55 and 60 decibels at 3000 and 4000 Hertz, the Veteran's right ear puretone threshold results do not reveal three additional frequencies of 55 decibels or more at 1000, 2000, and 3000 Hertz. Similarly, the Veteran's left ear test results do not reveal two additional frequencies of 55 decibels or more at 1000 or 2000 Hertz. Hence the requirements for an exceptional pattern of hearing impairment of four specified frequencies (1000, 2000, 3000, and 4000 Hertz) at 55 decibels or more in the right ear or left ear. 38 C.F.R. § 4.86(a). Neither does the Veteran's puretone threshold testing reveal results of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz in either ear. 38 C.F.R. § 4.86(b). As such, the March 2016 hearing thresholds do not reflect an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.85 Table VIA. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. The February 2017 VA examiner opined that the hearing loss impacts ordinary conditions of daily life, including ability to work; the Veteran described the impact of his disability as having to have everything at a high volume in order to hear, which disturbs people around him who do not have a hearing loss. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 20 30 75 38.00 96% LEFT 25 20 45 30 30.00 100% 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 DC 6100. The Board has considered whether there is an exceptional pattern of hearing at 1000, 2000, 3000, and 4000 Hertz) under 38 C.F.R. § 4.86(a). However, while the Veteran's right ear threshold was 75 decibels at 4000 Hertz, further threshold testing does not reveal three additional frequencies of 55 decibels or more at 1000, 2000, and 3000 Hertz. The Board notes that the February 2017 testing revealed no left ear thresholds at 55 decibels or greater. Hence, the requirements for an exceptional pattern of hearing impairment of four specified frequencies (1000, 2000, 3000, and 4000 Hertz) at 55 decibels or more in either ear. 38 C.F.R. § 4.86(a). Neither does his puretone threshold testing reveal results of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz in either ear. 38 C.F.R. § 4.86(b). As such, the February 2017 hearing thresholds do not reflect an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.85 Table VIA. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. The May 2019 examiner opined that the hearing loss impacts ordinary conditions of daily life, including ability to work, which the Veteran described as having difficulty understanding speech in noise. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 15 35 80 38.75 94% LEFT 20 15 55 55 36.25 94% 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 DC 6100. The Board has considered whether there is an exceptional pattern of hearing at 1000, 2000, 3000, and 4000 Hertz) under 38 C.F.R. § 4.86(a). However, although the Veteran's right ear threshold was 80 decibels at 4000 Hertz and his left ear thresholds were 55 and 55 decibels at 3000 and 4000 Hertz, the Veteran's right ear puretone threshold testing did not reveal three additional frequencies of 55 decibels or more at 1000, 2000, and 3000 Hertz. Similarly, the Veteran's left ear did not reveal two additional frequencies of 55 decibels or more at 1000 or 2000 Hertz. Hence the requirements for an exceptional pattern of hearing impairment of four specified frequencies (1000, 2000, 3000, and 4000 Hertz) at 55 decibels or more in the right ear or left ear. 38 C.F.R. § 4.86(a). Neither does the Veteran's puretone threshold testing reveal results of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz in either ear. 38 C.F.R. § 4.86(b). As such, the May 2019 hearing thresholds do not reflect an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.85 Table VIA. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. The November 2019 examiner opined that the hearing loss impacts ordinary conditions of daily life, including ability to work which the Veteran described as having difficulty understanding speech in noise and must increase television volume. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 20 40 70 37.50 88% LEFT 20 20 60 60 40.00 98% Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level II 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 DC 6100. The Board has considered whether there is an exceptional pattern of hearing at 1000, 2000, 3000, and 4000 Hertz) under 38 C.F.R. § 4.86(a). However, although the Veteran's right ear threshold was 70 decibels at 4000 Hertz and his left ear thresholds were 60 and 60 decibels at 3000 and 4000 Hertz, the Veteran's right ear puretone threshold testing did not reveal three additional frequencies of 55 decibels or more at 1000, 2000, and 3000 Hertz. Similarly, the Veteran's left ear thresholds did not reveal two additional frequencies of 55 decibels or more at 1000 or 2000 Hertz. Hence the requirements for an exceptional pattern of hearing impairment of four specified frequencies (1000, 2000, 3000, and 4000 Hertz) at 55 decibels or more in the right ear or left ear. 38 C.F.R. § 4.86(a). Neither does the Veteran's puretone threshold testing reveal results of 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz in either ear. 38 C.F.R. § 4.86(b). As such, the November 2019 hearing thresholds do not reflect an exceptional pattern of hearing impairment to warrant consideration under 38 C.F.R. § 4.85 Table VIA. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. At this juncture, the lay and medical evidence of record does not reflect that the Veteran has alleged that his hearing loss has worsened since his last VA examination of November 2019. Although VA examinations do not necessarily go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board's evaluation of the claimed disability to be a fully formed one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this case, in light of the record noted above, the Board finds that the previous examinations are adequate for adjudication. See 38 C.F.R. §§ 4.85 DC 6100, 4.86. The Veteran's VA treatment records reflect reported symptoms consistent with those shown on the VA examinations, but do not include audiometric test results that could be considered under DC 6100. The Board has also considered the extent to which the bilateral sensorineural hearing loss impacts the Veteran's ordinary conditions of daily life, including his ability to work. However, the schedular criteria for hearing loss contemplates the functional effects of difficulty hearing and understanding speech. Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017). The Board is cognizant of the Veteran's general contentions concerning his difficulty in hearing. See Martinak, 21 Vet. App at 455-56. However, the assignment of disability ratings for hearing impairment is derived from a mechanical formula that is applicable in this case. As such, the Board finds that at no time since March 1, 2016, is the Veteran's bilateral hearing loss shown to have been manifested by auditory acuity worse than Level II for the right ear and Level I for the left ear, which equates to a non-compensable rating. 38 C.F.R. § 4.85. (Continued on the next page) Hence, the preponderance of the evidence is against a finding that the Veteran's bilateral hearing loss manifested to a compensable degree since March 1, 2016. See 38 C.F.R. §§ 4.7, 4.85, 4.86, DC 6100. The Board has considered the applicability of the benefit of the doubt doctrine, but as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.85, 4.86. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.