Citation Nr: 21041651 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-61 493 DATE: July 9, 2021 ORDER Entitlement to a compensable rating for bilateral hearing loss (previously rated as hearing loss, right ear) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the numeric designation of hearing impairment based on pure-tone threshold average and speech discrimination is a Roman numeral I for both the left and right ears. 2. Throughout the appeal period, the resulting percentage evaluation for hearing impairment represented by the intersection of Roman numeral designations for each ear does not correspond to a compensable rating. 3. The Veteran did not demonstrate an exceptional pattern of hearing loss during the period on appeal. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.85, 4.86, Diagnostic Code (DC) 6100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from July 1979 to July 1983 and from March 1984 to April 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In his December 2016 Substantive Appeal, the Veteran indicated that he wanted an "optional Board hearing: by live videoconference at a local VA office." See December 2016 VA Form 9, Substantive Appeal. The Veteran was scheduled for a hearing in October 2019. See August 2019 VA Correspondence. He failed to appear at the scheduled hearing, without good cause shown. The Board considers the Veteran's request for a hearing withdrawn. The matter is before the Board to address the Veteran's appeal. 1. Entitlement to a compensable rating for bilateral hearing loss The Veteran is currently service connected for his bilateral hearing loss at 0 percent disabling. See January 2015 VA Rating Decision Codesheet. Through his accredited representative, the Veteran contends: "that his service-connected hearing loss is worsening and that it affects him in his work and social life. He believes a compensable evaluation is appropriate." See May 2017 Marine Corps League Appellate Brief. Increased Ratings Disability evaluations are determined by the application of facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate, staged ratings are appropriate in adjudicating increased ratings when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007). The period of consideration begins one year prior to the claim for increase and extends to the present. In the case of initial ratings, the period for consideration begins with the effective date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claim for an original or increased rating remains in controversy when less than the maximum available benefit is awarded). Any reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Rating Schedule includes Tables to determine evaluation percentages. Beginning with Table VI, a Roman numeral designation (from Levels I through XI) is associated with the Pure-tone threshold average for each ear. "Pure-tone threshold average," as used in Table VI, is the sum of the pure-tone thresholds at 1000, 2000, 3000 and 4000 Hertz (Hz), divided by four. The pure-tone threshold at 500 Hz is not used in determining the evaluation but is used in determining whether a ratable hearing loss exists. Once the appropriate Roman numeral designation is found, by comparing "% of (speech) discrimination" on the vertical axis and "Pure-tone Threshold Average" on the horizontal axis, Table VII is used to assign a rating by comparing the Roman numeral designations, generated in Table VI, for the "better" and "poorer" ear. VA rating criteria for evaluating hearing loss disability provide ratings from 0 (non-compensable) to 100 percent. See 38 C.F.R. § 4.85. An examination for hearing impairment for VA purposes must be conducted by a state licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a Pure-tone audiometry test. Examinations are conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). Factual Background The claim for an increased rating for bilateral hearing loss was filed by the Veteran in August 2014. Therefore, the relevant temporal focus for evidence that is factually ascertainable regarding this disability includes evidence from August 2013. See 38 C.F.R. § 3.400(o)(2). In December 2012, the Veteran received an audiological evaluation from a private provider. Pure-tone threshold testing produced the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 10 30 30 45 70 65 60 Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 10 15 25 30 40 50 45 The average Pure-tone threshold for the right ear, columns B E, was 43.75 decibels (dB). The average Pure-tone threshold for the left ear, columns B E, was 27.5 dB. Word list speech discrimination (Maryland CNC) testing was not completed for this Veteran. See December 2012 Workwell Center examination report. An additional audiological examination was submitted by the Veteran's private provider in January 2013. Pure-tone threshold testing generated the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 35 40 35 55 80 75 70 Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 25 30 30 35 45 55 50 The average Pure-tone threshold for the right ear, columns B E, was 52.5 dB. The average Pure-tone threshold for the left ear, columns B E, was 35.0 dB. Word list speech discrimination (Maryland CNC) testing was not completed for this Veteran. See January 2013 Workwell Center examination report. A VA medical examination for hearing loss and tinnitus was completed for the Veteran in January 2015. The claims file and associated evidence of record, including the Veteran's private audiological examinations, was reviewed in preparation for his report. The examining physician evaluated the Veteran in person and considered his statements, including a reported "difficulty hearing in background noise." Pure-tone threshold testing yielded the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 20 25 40 55 75 80 75 Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz 15 20 40 40 45 55 55 The average Pure-tone threshold for the right ear, columns B E, was 48.75 dB. The average Pure-tone threshold for the left ear, columns B E, was 36.25 dB. Word list speech discrimination (Maryland CNC), appropriate for this Veteran, was 92 percent for the right ear and 94 percent for the left ear. Immittance (Tympanometry) testing could not be completed due to the inability of the examiner to obtain / maintain a seal. A diagnosis of bilateral sensorineural hearing loss in the frequency range of 500 4000 Hz was recorded by the examining physician. See January 2015 VA Hearing Loss and Tinnitus examination report. Analysis First, the Board notes that the audiological assessments completed at "Workwell Center" in December 2012 and January 2013 cannot be used to evaluate hearing loss, because the assessments do not contain speech discrimination scores. Table VIA (Numeric Designation of Hearing Impairment Based Only on Pure-tone Threshold Average) is to be used only (emphasis added) when the examiner certifies that the use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of 38 C.F.R. § 4.86, exceptional hearing impairment. See 38 C.F.R. § 4.85(c). Because there is no such certification from the December 2012 and January 2013 examiners, Table VIA cannot be used to evaluate the data. Further, as discussed in more detail below, the Veteran does not meet the criteria for exceptional hearing loss under 38 C.F.R. § 4.86 for an exception to the speech discrimination score requirement for consideration of the December 2012 and January 2013 data. Evaluating the VA audiological test results cited above, the Board finds that when the pure-tone threshold averages and the speech recognition scores from the VA examination in January 2015 are applied to Table VI (Numeric Designation of Hearing Impairment Based on Pure-tone Threshold Average and Speech Discrimination), the numeric designation of hearing impairment for both the right and left ears is Roman numeral I. Assuming arguendo that the Board was able to use the data from the December 2012 and January 2013 private audiological examinations, the difference in numeric designations would not change the percentage evaluation outcome. See 38 C.F.R. § 4.85, Tables VI and VIA. The designated numeral "I" from Table VI represents both the "better ear" and "poorer ear" from the January 2015 VA examination. When applied to Table VII (Percentage Evaluation for Hearing Impairment Diagnostic Code 6100), the corresponding evaluation for hearing impairment is 0 percent, the point at which both designated numerals intersect along the bottom row. See 38 C.F.R. § 4.85, Table VII. Therefore, a compensable rating is not warranted. See 38 C.F.R. § 4.85, DC 6100. It should be noted that "Review for entitlement to special monthly compensation under 38 C.F.R. § 3.350" is appreciable for numerical designations of "XI" from Table VI. See 38 C.F.R. § 4.85, Table VII. Since the Veteran does not meet the pure-tone threshold requirements of 55 decibels or more at each (emphasis added) of the specified frequencies (1000, 2000, 3000, 4000 Hertz) or 30 decibels or less at 1000 Hertz and (emphasis added) 70 decibels or more at 2000 Hertz, the provisions for exceptional hearing impairment do not apply. See 38 C.F.R. § 4.86. Conclusion Consideration has been given to the Veteran's statements regarding his hearing difficulties, and the Board has not overlooked the Veteran's statements regarding the severity of his hearing loss. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge, i.e., difficulty hearing in background noise. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through VA examination and private treatment throughout the course of his appeal with respect to the presence of hearing loss symptoms and their severity. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. The Veteran's reported symptomatology has been noted, and the Board has considered the Veteran's reports with respect to this decision. The Veteran contends that his hearing loss is more severe than what is reflected in his current disability rating. Unfortunately, his opinion is of no probative value because he lacks the medical expertise needed to assess his current level of hearing loss. See Jones v. West, 12 Vet. App. 383, 385 (1999) (holding that where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Therefore, the objective medical findings provided by the Veteran's VA examination report has been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) ("[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator."). The evaluation of hearing loss is determined by the prescribed application of the numeric designations to the percentage evaluations in the Rating Schedule, after audiometric evaluations are recorded. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Further, 38 C.F.R. § 4.85, Table VII, assigns a specific percentage rating to each designated numeral of impairment converted during the rating process. Requirements for a compensable rating due to hearing loss are not based on subjective criteria, including the Veteran's belief about what may be appropriate. In reviewing the record, the Board finds that the Veteran's degree of bilateral hearing loss does not meet the standards for a compensable rating at any point during the appeal period. The relevant legal authority governing the evaluation of hearing impairment is clear and unambiguous, and the Board is bound by such authority. The overall weight of the evidence is against a finding that the Veteran is entitled to a compensable rating for his hearing loss. Therefore, his claim for an increased rating must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (Continued on the next page) Finally, the Veteran has not indicated, nor has the evidence raised, that his service-connected hearing loss in conjunction with his other service-connected disability has worsened or render him unable to obtain or maintain substantially gainful employment; thus, the Board will not address the issue of entitlement to a total disability rating for individual unemployability herein. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.