Citation Nr: 21042794 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-15 500 DATE: July 13, 2021 ORDER Entitlement to service connection for hyperacusis, as secondary to service-connected bilateral hearing loss, is granted. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. The Veteran's hyperacusis is secondary to his service-connected bilateral hearing loss. 2. Throughout the appellate period, the Veteran's bilateral hearing loss has been manifested by no worse than Level III hearing impairment in the right ear and Level I hearing impairment in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for hyperacusis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. 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, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to November 1984 and from February 1986 to October 2006. The Veteran filed a claim for an increased rating for his bilateral hearing loss in June 2011. Thereafter, a May 2013 rating decision was issued, but the agency of original jurisdiction (AOJ) indicated that this was a provisional decision. Thereafter, a hearing loss VA examination was scheduled in March 2015, which resulted in the instant March 2015 rating decision on appeal before the Board of Veterans' Appeals (Board). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the claims file. Subsequently, the Board remanded the case for further development in August 2018 and January 2021. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Id 1. Entitlement to service connection for hyperacusis The issue of entitlement to secondary service connection for hyperacusis has been raised by the record and is part and parcel of the increased rating claim on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (schedular rating concepts, including secondary service connection, are critical components of VA's duty to maximize benefits). A June 2012 VA audiology examination noted hyperacusis reactions to stimuli. An October 2012 VA otolaryngology consult record diagnosed severe hyperacusis attributable to the Veteran's bilateral hearing loss. A May 2021 VA examiner noted that Veteran still demonstrates signs of increased sensitivity and hyperacusis. The examiner opined that the Veteran's hyperacusis, which results from noise induced hearing loss as a co-factor, was at least as likely as not related to in-service noise exposure. Accordingly, the Board finds that service connection for hyperacusis is warranted as the evidence indicates that the Veteran's hyperacusis is secondary to his service-connected bilateral hearing loss. The AOJ will issue a rating decision assigning the initial rating and effective date of service connection. If the Veteran disagrees with the initial rating or effective date assigned by the AOJ, he may seek review of that decision by filing the appropriate VA-promulgated form. As to the rating below, though, as the evidence of record already provides the overall reduction of hearing acuity for purposes of a rating under DC 6100, the Board finds it can address the rating for this disability at this time. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a compensable rating for bilateral hearing loss The Veteran's bilateral hearing loss is in receipt of a noncompensable rating pursuant to Diagnostic Code 6100. Under Diagnostic Code 6100, the assignment of disability ratings for service-connected 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). Evaluations for defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled Maryland CNC speech discrimination test together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz (Hz). The Rating Schedule establishes eleven auditory acuity levels designated from Level I to Level XI for profound deafness. 38 C.F.R. § 4.85. A June 2012 VA audiological examination reveals that the Veteran's puretone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 20 25 60 80 LEFT 10 10 20 40 Speech audiometry using the controlled Maryland CNC speech discrimination test revealed speech recognition ability of 96 percent in the right ear and 100 percent in the left ear. The examination resulted in puretone threshold average of 46 decibels for the right ear and 20 decibels for the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level I in right ear and Level I in the left ear. These numeric designations in combination correspond to a noncompensable rating under Table VII. A March 2015 VA audiological examination reveals that the Veteran's puretone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 25 40 80 90 LEFT 20 30 55 55 Speech audiometry using the controlled Maryland CNC speech discrimination test revealed speech recognition ability of 88 percent in the right ear and 92 percent in the left ear. The examination resulted in puretone threshold average of 59 decibels for the right ear and 40 decibels for the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level III in right ear and Level I in the left ear. These numeric designations in combination correspond to a noncompensable rating under Table VII. An October 2014 private audiogram and February 2019 VA audiogram have been associated with the claims file. However, while the reports demonstrate puretone threshold testing, the speech recognition scores clearly indicate that they were from the Speech Recognition in Noise Test (SPRINT) and NU-6 word list, which are not adequate for rating purposes. As the Maryland CNC controlled speech test was not used, as is required for rating a hearing loss disability under 38 C.F.R. § 4.85(a), these evaluations are invalid for rating purposes. The Veteran was afforded a VA audiological examination in June 2019; however, the results of the puretone testing were deemed invalid due to inter-test consistency. Thus, the June 2019 VA examination is not valid for rating purposes. A May 2021 VA audiological examination reveals that the Veteran's puretone thresholds, in decibels, were as follows: 1000 Hz 2000 Hz 3000 Hz 4000 Hz RIGHT 35 40 80 90 LEFT 25 25 50 55 Speech audiometry using the controlled Maryland CNC speech discrimination test revealed speech recognition ability of 94 percent in the right ear and 96 percent in the left ear. The examination resulted in puretone threshold average of 61 decibels for the right ear and 39 decibels for the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level II in right ear and Level I in the left ear. These numeric designations in combination correspond to a noncompensable rating under Table VII. The Board notes that the above audiological findings do not qualify as an exceptional pattern of hearing impairment under 38 C.F.R. § 4.86, as the Veteran at no point during the appellate period had pure tone thresholds of 55 decibels or more at each of the four specified frequencies or a pure tone threshold of 30 decibels or less at 1000 Hz and 70 decibels or more at 2000 Hz in either ear. Thus, Table IVA does not apply in this case. 38 C.F.R. § 4.86. After reviewing the foregoing evidence, the Board finds that the competent evidence of record establishes that the Veteran's bilateral hearing loss is properly assigned a noncompensable rating. In short, the audiological testing indicated, at worse, Level III hearing impairment in the right ear and Level I hearing impairment in the left ear, which results in a noncompensable rating under Table VII. The Board has considered the lay statements of record and finds the statements competent and credible in regard to reporting worsening hearing acuity and functional effects. However, more probative of the degree of the disability are the results of testing prepared by skilled professionals because the schedular criteria are predicated on audiological findings rather than subjective reports of severity of hearing loss. In essence, lay statements are of limited probative value. As a layperson, the Veteran is competent to report difficulties with his hearing; however, the Veteran is not competent to assign particular speech recognition scores or puretone decibel readings to his current acuity problems. Moreover, while the Board notes that the Veteran has VA issued hearing aids, the use or issuance of hearing aids is not conclusive evidence as to whether a veteran's hearing loss rises to the level of a compensable or higher rating for VA purposes. Additionally, it must be emphasized that the assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board has no discretion in this matter and must predicate its determination on the basis of the results of the audiology studies of record. See Lendenmann, 3 Vet. App. at 349. In other words, the Board is bound by law to apply VA's rating schedule based on the audiometry results. In sum, the Board finds that a compensable rating is not warranted at any time during the appellate period. Accordingly, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.