Citation Nr: 22005367 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 18-55 290A DATE: February 1, 2022 ORDER Entitlement to an initial compensable disability rating for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss is manifested by no greater than Level I hearing loss in each ear. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the U.S. Army from December 1984 to December 1987 and in May 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). In July 2020, the Board remanded this matter for additional development, which has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that no new VA examination have been provided to the Veteran since the July 2020 remand. In January 2021, June 2021, July 2021, and September 2021, the Veteran indicated that he would like for his appeal to be decided with all the evidence on file. He indicated that he did not want to attend a VA examination for his claim. The Veteran expressed his concerns of attending an in-person examination due to COVID-19. The Board acknowledges and respects the Veteran's concerns. The Board notes that there is a January 2022 VA hearing loss examination request of record. The Veteran has filed a claim for total disability and this examination may have been schedule due to this claim. However, this is not consistent with the Veteran's previous request of not rescheduling an in-person examination for his hearing loss claim. The Veteran has indicated numerous times that he did not wish to attend an in-person examination for his hearing loss claim. Therefore, the Board will proceed with adjudicating the claim based on the current available evidence. With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the applicable criteria, ratings for bilateral hearing loss are determined in accordance with the findings reported at audiometric examinations. Evaluations of hearing impairment 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 audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from bilateral hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing tests will be conducted without hearing aids, and the results of above-described testing are charted on Table VI and Table VII. See 38 C.F.R. § 4.85. The regulations include special provisions for evaluating exceptional patterns of hearing impairment: (a) When the pure tone 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 VIa, whichever results in the higher numeral. Each ear will be evaluated separately. (b) When the pure tone threshold is 30 decibels or less at 1000 hertz, and 70 decibels or more at 2000 hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86. In March 2017, the Veteran was afforded a VA hearing loss examination showing: HERTZ 500 1000 2000 3000 4000 Average Right 15 10 35 50 45 35 Left 15 10 20 40 35 26.25 The average decibel loss in the left ear was 26.25 and for the right ear 35. Speech recognition scores were 96 percent in the right ear and 96 percent in the left ear. The examiner opined that the Veteran's hearing loss impacted his ordinary conditions of daily life, including his ability to work. The Veteran indicated that he was not able to understand what people were saying during a conversation. These findings correspond to Level I hearing in each ear, which in turn corresponds to a 0 percent (noncompensable) disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. In April 2018, the Veteran was afforded a VA hearing loss examination. The examiner noted that the Veteran's audio test was invalid due to test inconsistencies even with reinstruction. Audiometric reevaluation was recommended to establish true thresholds for rating. At a May 2018 VA audiology examination, the Veteran exhibited audiometric findings of: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 50 55 50 LEFT 20 25 40 55 50 Speech recognition scores were 8 percent in the right ear and 0 percent in the left ear using the NU-6-word recognition test. The Board notes that the May 2018 VA audiometric examination derived speech discrimination results using the NU-6-word recognition test and not the Maryland CNC speech discrimination test as required by 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. Therefore, this test is not valid for rating purposes. In May 2018, the Veteran was afforded a VA hearing loss examination showing: HERTZ 500 1000 2000 3000 4000 Average Right 5 15 25 40 35 28.75 Left 10 10 20 35 35 25 The average decibel loss in the left ear was 25 and for the right ear 28.75. Speech recognition scores were 94 percent in the right ear and 94 percent in the left ear. The examiner opined that the Veteran's hearing loss impacted his ordinary conditions of daily life, including his ability to work. The Veteran indicated that he was not able to hear people when they were talking. He stated that it was very difficult for him to hear. These findings correspond to Level I hearing in each ear, which in turn corresponds to a 0 percent (noncompensable) disability rating. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is not shown. The Board has considered the Veteran's statements as to the difficulties he experiences socially as a result of his bilateral hearing loss disability and finds his report of difficulty understanding conversations credible. However, the Board observes that VA examiner also considered the Veteran's functional difficulty. In Martinak v. Nicholson, 21 Vet. App. 447 (2007), the Court noted that VA had revised its hearing examination worksheets to include the effect of a Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10. The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bore the burden of demonstrating any prejudice caused by a deficiency in the examination. Here, the Veteran reported during the VA examination that his hearing interfered with conversing with others. Thus, information concerning how the Veteran's hearing loss disability affected his daily functioning was obtained. The Court has specifically held that the rating criteria for a hearing loss disability 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. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In essence, VA's audiological examinations are designed for purposes of obtaining information necessary for the full and accurate application of the "Percentage Evaluation for Hearing Impairment" tables, which are based exclusively on the results provided from two objective tests namely, a pure tone audiometry test and a speech discrimination test. See 38 C.F.R. § 4.85. The Veteran has not offered any evidence demonstrating that the testing method used produced inaccurate, misleading, or clinically unacceptable results. It must be emphasized that the assignment of a disability rating for bilateral 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 v. Principi, 3 Vet. App. 345 (1992). In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran's bilateral hearing loss disability has increased in severity to warrant a compensable disability rating; or, that available findings do not accurately reflect his hearing ability at any time. Here, the objective clinical findings outweigh the Veteran's lay assertions that a compensable evaluation is warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.