Citation Nr: 21042250 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 19-19 961 DATE: July 12, 2021 ORDER Entitlement to a rating in excess of 0 percent (noncompensable) for a bilateral hearing loss disability is denied. FINDING OF FACT Audiological testing showed the Veteran's hearing acuity was a level I in the right and left ears. CONCLUSION OF LAW The criteria for a disability rating for bilateral hearing loss in excess of 0 percent have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on Active Duty for Training (ACDUTRA) from November 1962 to May 1963. The Veteran is service connected for bilateral hearing loss and tinnitus and therefore veteran status is established. The Veteran appeared at a Board hearing in January 2021; a transcript is of record. With respect to the Board hearing, the undersigned clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Ratings Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Bilateral Hearing Loss Disability The Veteran contends a higher rating for his hearing loss disability is warranted. He is rated noncompensable for bilateral hearing loss disability under diagnostic code 6100. Evaluations of defective hearing range from noncompensable to 100 percent based on impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from hearing, the rating schedule assigns Roman numeral designations, from I through XI. Generally, the Roman numerals are assigned based on the puretone threshold average and the percent of speech discrimination. The puretone threshold average is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. 38 C.F.R. § 4.85(d). On Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination), the puretone threshold average is located along a horizontal axis and the percent of speech discrimination is located along a vertical axis. 38 C.F.R. § 4.85, Table VI. For each ear, the intersection of the puretone threshold average and the percent of speech discrimination on this table results in a Roman numeral designation. The Roman numerals are then matched based on the better ear and the poorer ear on Table VII (Percentage Evaluation for Hearing Impairment (Diagnostic Code 6100)) to produce a disability rating percentage under Diagnostic Code 6100. Exceptional patterns of hearing impairment are rated under 38 C.F.R. § 4.86. Specifically, an exceptional pattern of hearing loss is hearing loss of 55 decibels or more in each of the four specified frequencies (i.e. 1000, 2000, 3000, and 4000 Hertz), and hearing loss with a pure tone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a)-(b). The assignment of disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). A VA examination was conducted in June 2017. Results were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 25 60 60 LEFT 5 10 30 60 Average was 40 percent in the right ear and 26 in the left ear. Speech discrimination was 92 percent (Maryland CNC word list) in the left and right ears. The examiner noted both ears had sensorineural hearing loss (in the frequency range of 500-4000 Hz). The Veteran reported that his functional impact of hearing loss was that he cannot hear well when out in a noisy area, even with hearing aids. He misses certain things and had to learn to read lips. The Veteran submitted hearing examination reports from private examiners, one received in November 2017 and dated in March 2010, the second dated in December 2017 and received in January 2018, the third received in February 2018 and dated in February 2018a fourth dated in November 2019 and received in December 2019, and a fifth and sixth exanimation report dated in February 2021 and January 2021 and received in February 2021. These submitted examinations do not meet the VA's criteria for determining a proper rating for bilateral hearing loss disability. None of them included all the information required by 38 C.F.R. § 4.85(a). In November 2018, an additional VA examination was conducted. Puretone thresholds could not be tested. The VA examiner indicated that the results are not valid for rating purposes. Responses were too variable to diagnose the severity and configuration of hearing loss; hearing sensitivity remains undetermined at this time and an opinion regarding adjudication for hearing loss is therefore not offered. Word recognition testing could not be completed. The use of word recognition score is not appropriate because of language difficulties, cognitive problems, inconsistent word recognition scores; that make combined use of pure tone average and word recognition scores inappropriate. The examiner found that hearing sensitivity was undetermined at this time. At his VA hearing in January 2021, the Veteran testified that he had difficulty maintaining conversations with his family, including his wife, children, and grandchildren. He stated that he has difficulty making out words on TV and struggles to keep up with conversations over the phone. In a January 2021 VA medical treatment record submitted after the hearing, the examiner wrote that the Veteran reported his hearing had declined. The Board remanded the matter in April 2021 for a new VA examination to determine the current severity of the hearing loss disability. In May 2021, the examiner again found that the results were invalid and could not be used for ratings purposes. The rationale was that the results showed poor reliability as Pure Tone Average (PTA) is well above Speech Reception Threshold (SRT). Speech reception threshold and pure tone average are in poor agreement. Word recognition testing could not be completed. These results cannot be used for adjudication purposes. The use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate. The Board notes that the Veteran was provided examinations for his service-connected bilateral hearing loss in November 2018 and April 2021. The testing results were found invalid for rating purposes. While the Veteran submitted hearing examinations from private examiners, the submitted examinations do not meet the VA's criteria for determining a proper rating for bilateral hearing loss. The Board has considered the Veteran's statements and the private examinations. However, VA compensation law requires controlled Maryland CNC speech discrimination test and average hearing threshold level measured by pure tone audiometry tests results. Further, it is not just that the results were inconsistent or unreliable in general or once. His results were not reliable after two different attempts. The Court has established that the duty to assist is not a one-way street or a blind alley. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Olson v. Principe, 3 Vet. App. 480, 483 (1992). This means that the Veteran has an obligation to cooperate with examinations so that an examiner can determine the actual level of impairment. The Board and the Regional Office attempted to obtain examinations that would establish the current level of severity of the Veteran's disability, but the Veteran was not able to produce valid test results. The private examination results do not comply with VA compensation law. Therefore, the Board is left only with the 2017 VA examination results. Use of the above (valid) audiological testing results with Table VI shows Roman numerals I for the left ear and I for the right ear. Use of the resulting (valid) Roman numerals in conjunction with 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. To the extent the Veteran contends his hearing is worse than shown in VA examination listed above, the Board has considered such a possibility. However, far more probative of the degree of the disability are the results of testing prepared by skilled professionals since the schedular criteria are predicated on audiological findings rather than subjective reports of the severity of hearing loss. In essence, lay statements are of limited probative value. Laypeople are competent to report difficulty with hearing; however, laypeople are not competent to assign speech recognition scores or puretone decibel scores regarding current acuity problems. As indicated above, ratings of hearing loss disability involve mechanical application of the rating criteria to the findings on official audiometric records. See Lendenmann, supra. However, Lendenmann presupposes valid test results. Such do not exist here after the 2017 VA examination. Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss disability is not warranted. The Veteran's symptoms have not more nearly approximated the criteria for a higher rating. The benefit-of-the-doubt doctrine therefore does not apply, and the claim for a compensable rating must be denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.