Citation Nr: 21042730 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-08 372 DATE: July 13, 2021 ORDER Entitlement to an increased compensable evaluation for a bilateral hearing loss disability, to include on an extraschedular basis, is denied. FINDING OF FACT During the appeal period, the Veteran's speech discrimination test results and hearing thresholds did not meet the criteria for a compensable rating. The rating criteria for hearing loss contemplates the functional effects of difficulty hearing and understanding speech. The preponderance of the evidence is against finding that the Veteran's bilateral hearing loss was manifested by functional impairment not contemplated by the rating criteria. CONCLUSION OF LAW The criteria for entitlement to an increased compensable evaluation for a bilateral hearing loss disability, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1-4.16, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1961 to March 1964. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated March 2013 issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO continued the noncompensable evaluation for bilateral hearing loss. The Veteran timely appealed. The Veteran's appeal has previously been before the Board. In July 2018, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for additional development. The Veteran testified at a March 2018 Board virtual hearing. A transcript of this hearing has been reviewed and associated with the Veteran's claims file. The Veterans Law Judge (VLJ) who conducted the Veteran's hearing is no longer employed by the Board. The Board sent the Veteran a letter notifying him of this on May 11, 2021. The Veteran responded in a letter dated June 2021 notifying the Board that he did not wish to appear for another hearing and wanted the Board to consider his case on the evidence of record. Thus, the Board will proceed with adjudication. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Increased Rating In evaluating service-connected hearing loss, disability ratings are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992); 38 C.F.R. § 4.85. Evaluations of bilateral defective hearing 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 audiometric tests at the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). To evaluate the degree of disability from bilateral defective hearing, the rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. Id. When the puretone 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 VI(a), whichever results in the higher numeral. Each ear will be evaluated separately. See 38 C.F.R. § 4.86(a). Similarly, if the puretone threshold is 30 decibels or less at 1000 Hz, and 70 decibels or more at 2000 Hz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VI(a), whichever results in the higher numeral, and that numeral will be elevated to the next higher Roman numeral. Lastly, the Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010). Entitlement to an increased compensable evaluation for a bilateral hearing loss disability, to include on an extraschedular basis The Board finds that at no time during the appeal period has the Veteran's bilateral hearing loss disability warranted the assignment of a compensable rating. The period on appeal begins on August 24, 2012, the date of the Veteran's claim for an increased rating. The Veteran was provided a VA audiological examination in October 2012. All puretone thresholds were noted as CNT. The VA examiner noted that the test results were not valid for rating purposes. She provided, "Patient responses inconsistent; no PTA/SRT agreement." The VA examiner administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 3.485. The Veteran attained 40 percent in the left ear and DNT was noted in the right ear. The examiner wrote, "However, the use of the speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that make combined use of puretone average and speech discrimination scores inappropriate." Therefore, as this examination is not valid for rating purposes, the Board will not consider these audiometric findings in its determination. The Veteran stated he had difficulty hearing his wife, the TV and in background noise even when wearing amplification. He reported having difficulty in these situations even when he was wearing his hearing aids, which he wore on a daily basis. The Veteran was provided another VA audiological evaluation in March 2013. This examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG LEFT 30 65 65 70 57.5 RIGHT 35 55 60 65 53.75 The VA examiner additionally administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 3.485. The Veteran attained 80 percent in the left ear and 84 percent in the right ear. These audiometric findings equate to Level IV hearing loss in the left ear and Level II hearing loss in the right ear under Table VI. Applying these results to Table VII results in a noncompensable rating. 38 C.F.R. § 4.85, Tables VI and VII. The Veteran reported that he had difficulty understanding conversation unless someone spoke very loudly. In a March 2014 Form 9, the Veteran wrote that the results of his most recent VA examination were wrong. He noted that he was cooperative and respectful during the examination. He wrote, My right ear took 20 minutes to test and complained that no way was my right ear that bad and she stopped the test and refused to do the test on my left ear. The main reason I went for the test, was because I have a problem understanding vowels and consonants...I have been very depressed since I lost part of my hearing for a long time pretending to agree with people when they are talking, not hearing what they are saying, out with friends to have people repeat everything to me, putting the TV too loud in the house, having my wife talking on the phone for me, and getting aggravated with myself with my hearing condition. In a December 2016 appellate brief, the Veteran's representative wrote, The Veteran argues that he finds himself turning the television up louder than usual, and that he developed a habit of trying to talk loud. The Veteran also argues that his hearing loss results in difficulty understanding speech in difficult listening situations, such as in the presence of background noise, in groups at a distance, and when he cannot see speakers' faces, all objective factors that should be considered for an initial higher rating in excess of 20 percent for hearing loss even if the higher rating is to be accomplished under extra schedular consideration. In a March 2018 hearing, the Veteran noted that his symptoms of hearing loss had worsened since last VA examination. He testified that it was difficult to have hearing loss especially in the house with his wife as she was talking to him all the time. If something was on TV, he always had to repeat it or raise the volume. If he was talking to somebody, he would have to ask them to raise their volume up on the phone to understand what was going on. It was really difficult to understand vowels and consonants, more than anything else. If he heard an engine running or noise in a house or a crash, he could hear those noises clearly, but not words. He also noted that he had to read people's lips. He also noted that he had difficulty in a group environment or crowds. The Veteran was provided another VA audiological evaluation in May 2019. This examination revealed puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVG LEFT 40 60 70 70 60 RIGHT 50 60 70 75 63.75 The VA examiner additionally administered the Maryland CNC word list pursuant to VA regulations. See 38 C.F.R. § 3.485. The Veteran attained 84 percent in both ears. These audiometric findings equate to Level III hearing loss in both ears under Table VI. Applying these results to Table VII results in a noncompensable rating. 38 C.F.R. § 4.85, Tables VI and VII. The Veteran reported that he had to set the TV volume at a level that his wife finds too loud. He also reported that he was recently in a driver education class and had difficulty understanding the instructor. In a June 2019 statement, the Veteran wrote that after his audiological evaluation in May 2019, the physician told him that his hearing had gotten worse. He also noted, "When I talk on the phone, I have to use a speaker phone with caption on it." A review of the audiological examinations of record does not support the assignment of an increased rating for the Veteran's bilateral hearing loss disability. Throughout the pendency of the Veteran's appeal, findings are consistent with a noncompensable disability evaluation. More severe hearing impairment is required for a compensable disability rating under VA regulations. Finally, the Board has considered the Veteran's lay reports of symptoms. While the Veteran is competent as a lay person to report difficulty hearing, he is not competent to assign puretone threshold findings or speech recognition scores to his perceived hearing impairment. The assignment of such findings requires medical training and expertise which the Veteran is not shown to possess. Thus, the Board places greater probative weight on the audiometric findings recording in the various examinations during the course of the appeal. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The representative explicitly asserted that the Veteran is entitled to a higher rating on an extraschedular basis in the 2016 appellate brief. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. When a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). In this case, the rating criteria for hearing loss contemplate the functional effects of decreased hearing, difficulty understanding speech, including when background noise is present or he cannot see the speaker's face, and having to turn up the television. The threshold issue under Thun is thus is not met for these symptoms, and further consideration of an extraschedular rating is not warranted with respect to these symptoms. In an April 2013 letter, the Veteran claimed entitlement to service connection for depression as secondary to hearing loss. In January 2014, the AOJ denied a claim of service connection for depression as secondary to hearing loss. The Veteran did not appeal this denial and it is final. However, the Board will consider this as a possible symptom of hearing loss. The Veteran reported being "very depressed" in March 2014 as a result of his hearing loss. Depression is not listed in the rating criteria for hearing loss; however, as explained below the Board does not find this to be a symptom of hearing loss during the appeal period. In October 2013, the Veteran indicated in a VA depression screening that on several days in the last two weeks, he had felt little interest or pleasure in doing things, and felt down, depressed, or hopeless. However, these responses were mild enough that the depression screening was negative with a score of 2. The medical evidence does not reflect a diagnosis, treatment, or complaint of depression during the appeal period. The Veteran is competent to report his feelings that result from hearing loss symptoms, but here the medical evidence contradicts his lay evidence. He had negative depression screenings (score of 0) in September 2014, October 2015, August 2016, December 2016, November 2017, and October 2018. In all of these instances. the Veteran answered "not at all" when asked if he was feeling down, depressed, or hopeless in the past two weeks. In a March 2016 mental status examination, the Veteran reported his typical mood as: "I'm always a fun guy, joking around laughing. I'm not in a sad state." When specifically asked about depression symptoms, the Veteran denied current or history of depression. He reported some events that he found "depressing," including his 24 year old car deteriorating and being unable to perform the repairs as he would have 20 years ago, becoming unemployed soon after getting married but overcoming that situation when he got another job. The Veteran denied persistent depressed mood, anhedonia, hopelessness, and social withdrawal. The mental health provider found no depression was indicated. Notably, hearing loss was not one of the scenarios the Veteran reported as "depressing." While the Veteran may have felt what he considered to be "very depressed" as a result of difficulty hearing, his own reports to medical providers throughout the appeal period contradict this statement and show that he was not experiencing depression or depressive symptoms significant enough to screen positive. Based on these inconsistencies, the Board finds the Veteran's lay report of being "very depressed" not credible. Therefore, the Board does not find a symptom of hearing loss attributable to hearing loss and it is not necessary to analyze it further. Accordingly, the Board finds that the schedular rating criteria contemplate the Veteran's service-connected bilateral hearing loss, as there is no evidence in the record or allegation of symptoms of and/or impairment due to the bilateral hearing loss not encompassed by the criteria for the assigned schedular rating. Accordingly, referral for consideration of entitlement to an extraschedular rating is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for entitlement to an increased rating for a bilateral hearing loss disability. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bristor 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.