Citation Nr: 21042471 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-60 414 DATE: July 13, 2021 ORDER A compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran failed to report, without good cause, for a VA examination scheduled in August 2019. 2. For the entire appeal period, the Veteran had no worse than Level I hearing in the right ear and Level II hearing 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. §§ 4.1, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty May 1988 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 the case was remanded for additional development, and now returns for further appellate review. Entitlement to a compensable rating for bilateral hearing loss. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's service-connected bilateral hearing loss has been assigned a noncompensable rating under 38 C.F.R. § 4.85, DC 6100, as of April 9, 2013 the date of service connection. In this regard, ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. As an initial matter, the Board notes the Veteran last underwent an audiological examination for his hearing loss in January 2016. However, the hearing thresholds were not recorded because the Veteran did not respond to puretone thresholds at any level. In this regard, the last examination that is adequate for rating purposes was conducted in April 2013. As the Veteran claimed his hearing had worsened since such examination, the case was remanded to afford the Veteran a contemporaneous VA examination to assess the severity of his bilateral hearing loss. In August 2019, the Veteran was notified that VA had requested an examination in order to determine the current level of his disability. Thereafter, the Veteran was scheduled for a VA examination in August 2019; however, documentation reflects that he did not report for such examination. In the May 2020 supplemental statement of the case, the Veteran was advised that he had failed to attend the scheduled examination; however, to date, he has not presented good cause for his failure to attend or to express a willingness to attend a VA examination. In such a situation, 38 C.F.R. § 3.655 (a) provides that, when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. Under 38 C.F.R. § 3.655 (b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with, as relevant, a claim for increase, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655 (a). Consequently, as the Veteran did not attend his VA examination in connection with his claim for a higher initial rating for his bilateral hearing loss in August 2019, the Board will adjudicate such claim on the evidence of record. However, any evidence expected to be obtained in connection with the newly ordered examination cannot be considered in the adjudication of the claim. Turning to the evidence of record, the Veteran first underwent a VA audiological examination in April 2011. At such time, the examiner noted his hearing loss had significant effect on his occupation as he had hearing difficulty. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 25, 40, 45, and 45 in the right ear and were 15, 20, 20, and 40 in the left ear, respectively. The examiner noted that the pure tone threshold average in the right ear was 38.75 decibels and the average in the left ear was 23.75 decibels. No exceptional pattern of hearing loss was shown. Word recognition testing revealed speech recognition ability of 94 percent bilaterally. These audiometric test results equate to Level I hearing in the right ear and Level I in the left ear, which results in a noncompensable rating. The Veteran underwent another VA audiological examination in May 2012. At such time, he reported that his bilateral hearing loss left him struggling to hear the TV and that he cannot hear his girlfriend. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 15, 25, 30, and 30 in the right ear and were 10, 10, 10, and 20 in the left ear, respectively. The examiner noted that the pure tone threshold average in the right ear was 25 decibels and the average in the left ear was 12 decibels. No exceptional pattern of hearing loss was shown. Word recognition testing revealed speech recognition ability of 98 percent bilaterally. These audiometric test results equate to Level I hearing in both ears which equates to a noncompensable rating. The Veteran underwent another VA audiological examination in August 2012. However, such test results were not adequate for rating purposes. In this regard, pure tone thresholds were significantly elevated compared to Speech Reception Thresholds, and the Veteran only responded correctly to one or two words in each ear. The examiner noted that such scores are not representative of his communication abilities, as the Veteran had demonstrated normal hearing in his left ear and only mild-moderate [hearing loss] in the higher frequencies of the right ear. Thereafter, the Veteran was afforded another VA audiological examination in April 2013. At such time, he reported that his bilateral hearing loss left him struggling to hear the TV and that he cannot hear his girlfriend. The pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hz were 15, 25, 30, and 45 in the right ear and were 15, 20, 25, and 30 in the left ear, respectively. The examiner noted that the pure tone threshold average in the right ear was 29 decibels and the average in the left ear was 22 decibels. No exceptional pattern of hearing loss was shown. Word recognition testing revealed speech recognition ability of 84 percent in the right ear and 92 percent in the left ear. These audiometric test results equate to Level I hearing in the right ear and Level II hearing in the left ear, which equates to a noncompensable rating. As mentioned supra, the Veteran underwent another VA audiological examination in January 2016, and as the Veteran did not respond to pure tone presentations at any decibel level, the test results were not valid for rating purposes. At such time, the Veteran stated he cannot hear because of the ringing in his ears and requested hearing aids. Thus, based on the foregoing, the Board finds that, based on the audiometric results at the April 2011, May 2012, and April 2013 VA examinations, a compensable rating for bilateral hearing loss is not warranted. The Board notes the Veteran's representative has argued the Veteran's hearing loss disability does not accurately reflect the severity of his condition, as the Veteran states that he must use hearing aids at all times. However, VA treatment records do not reflect that the Veteran has hearing aids. Further, to the extent that the Veteran contends his bilateral hearing loss is more severe than currently evaluated, the Board observes that the Veteran, while competent to report symptoms capable of lay observation, such as difficulty hearing the television and other people, is not competent to report that his hearing acuity is of sufficient severity to warrant a compensable rating under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's aforementioned reports of the difficulties associated with his bilateral hearing loss. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds the criteria for a compensable evaluation are not met. See Lendenmann, supra. In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the U.S. Court of Appeals for Veterans Claims held that the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment as these are the effects that VA's audiometric tests are designed to measure. The Veteran has not otherwise described functional effects that are considered exceptional or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to such increased rating claim. Doucette, supra (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, the Board finds a compensable rating for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and his claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.