Citation Nr: 22014404 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-21 581 DATE: March 12, 2022 ORDER Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is denied. FINDING OF FACT The Veteran's bilateral hearing loss has been manifested by hearing acuity of no worse than Level X in the left ear and Level IV in the right ear. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.85, 4.86. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1972 to January 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran requested a Board hearing before a Veteran's Law Judge. In an August 2019 correspondence, the Veteran withdrew his hearing request. In November 2019 and October 2021 decisions, the Board remanded this matter for additional development. As a preliminary matter, the Board notes that the November 2019 Board decision remanded the Veteran's claim for a new examination to assess the current severity of the Veteran's hearing loss. The record reflects that the Veteran failed to report to this scheduled audiological examination. As the record indicates that the Veteran has not received an audiological testing for several years, the Board notes that a new examination may have been beneficial to the Veteran's increased rating claim. However, in an October 2020 statement, the Veteran included a request for "please no more tests" and expressed his desire for a final conclusion regarding this matter. Additionally, the October 2021 remand acknowledged the Veteran's request and instructed the Veteran to contact the RO should he change his mind regarding additional audiological testing. The record does not show that the Veteran requested to reschedule his examination or has otherwise indicated his willingness to attend an additional audiological examination. Therefore, the Board will proceed with the available evidence of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss. The Veteran contends that he is entitled to an increased rating for his bilateral hearing loss. The Veteran is currently service connected at a 30 percent disability rating under DC 6100 (hearing loss), effective October 29, 2015. 38 U.S.C. § 4.86. The Veteran is also service connected for tinnitus at a 10 percent disability rating under DC 6260 and left ear cholesteatoma at a 10 percent disability rating under DC 6200. Hearing loss disabilities are rated by application of a mechanical process that is explained here. Initially, VA must determine the Roman numerical designation for the degree of hearing impairment in each ear based upon a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85. In general, the Roman numerical designation is determined through application of 38 C.F.R. § 4.85 (h), Table VI. Under Table VI, the horizontal rows represent eight separate ranges of pure tone threshold averages, as demonstrated through audiometric testing for the frequencies at 1000, 2000, 3000, and 4000 Hertz. The average pure tone threshold is calculated by determining the sum of the pure tone thresholds demonstrated at the four frequencies and dividing that sum by four. The vertical columns under Table VI represent nine separate ranges of speech discrimination percentage, as determined through Maryland CNC testing. The Roman numerical designation of impaired efficiency is determined for each ear by intersecting the horizontal row appropriate for the calculated pure tone threshold average and the vertical column appropriate for the demonstrated percentage of speech discrimination. 38 C.F.R. § 4.85 (b). After the Roman numerical designation has been determined for each ear, VA then determines the appropriate disability rating through application of 38 C.F.R. § 4.85 (h), Table VII. Table VII is applied by intersecting the appropriate horizontal row (which represents the Roman numerical designation for the poorer ear) with the appropriate vertical column (which represents the Roman numerical designation for the better ear). 38 C.F.R. § 4.85 (e). The Veteran was provided with a VA audiological examination in March 2016. His reported pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 AVG (B-E) RIGHT 40 35 35 40 50 45 40 40 LEFT 80 75 70 90 100 90 80 84 Speech audiometry revealed speech recognition ability of 68 percent in the right ear and of 36 percent in the left ear. Applying the pure tone threshold average and speech discrimination percentage to Table VI produces a numerical designation of level IV in the right ear and level X in the left ear. Applying the results from Table VI, entering the numeral designations of IV for the right ear and X for the left ear to Table VII yields a disability rating of 30 percent under Diagnostic Code 6100. The Veteran was also provided with an audiological examination in October 2015. His reported pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 AVG (B-E) RIGHT 30 25 25 40 45 50 35 34 LEFT 60 75 75 70 100 90 85 80 Speech audiometry revealed speech recognition ability of 84 percent in the right ear and of 88 percent in the left ear. However, these scores were pursuant to the CID W-22 test, not the Maryland CNC test as required for a valid audio evaluation pursuant to 38 C.F.R. § 4.85(a). Thus, the Board cannot use the speech score for rating evaluation purposes. See 38 C.F.R. § 4.85(a). However, the Veteran's pure tone thresholds can support assessment under Table VIA based on an exceptional pattern of hearing impairment. 38 C.F.R. § 4.86 Applying the pure tone threshold average and speech discrimination percentage to Table VIA produces a numerical designation of level I in the right ear and level VII in the left ear. Applying the results from Table VIA, entering the numeral designations of I for the right ear and VII for the left ear to Table VII yields a disability rating of 0 percent under Diagnostic Code 6100. As detailed above, the audiological testing results yield disability ratings no higher than 30 percent. The assignment of disability ratings for hearing loss is primarily based upon a mechanical application of the rating criteria, as explained, and applied in this decision. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In this case, the clinical evidence of record, when mechanically applied to the rating criteria, simply does not show that a rating more than 30 percent is warranted. The Board acknowledges the reported functional impairment associated with the Veteran's bilateral hearing loss and its impact on his daily life. The Veteran has consistently reported reduced hearing acuity, reduced hearing clarity, difficulty following conversations, difficulty understanding speech, difficulty locating the source of sounds, and increased difficulty hearing with noisy environments and background noise. The Veteran provided numerous statements from friends and family documenting his hearing difficulties. The Veteran's treatment records and examinations also clearly document the functional impact of his hearing loss. The March 2016 VA examination indicated that the Veteran experiences difficulty understanding speech and localizing sounds, especially with background noise and on his left side. The Veteran's treatment records related to his hearing aids noted a communication deficit consistent with asymmetrical hearing loss, including difficulty with sound localization and hearing in noise. However, the functional impacts described by the Veteran are already contemplated by the rating criteria for hearing loss. Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which are contemplated by the schedular rating criteria for hearing loss). Thus, the schedular criteria adequately address the Veteran's disability, and there is no indication that the Veteran's hearing loss is manifested by symptoms not contemplated by the rating criteria under Diagnostic Code 6100. Additionally, the Board recognizes the severity of the Veteran's left ear hearing loss. However, this severity is also contemplated by the rating criteria. Tables VI and VII establish 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. As the schedular criteria is currently applied, the Veteran's left ear hearing loss is rated at Level X, only one level under profound deafness. The Board acknowledges the Veteran's sincere belief that his hearing loss is worse than reflected by his current rating. The Veteran is competent to report symptoms of disability, such as difficulty hearing speech, understanding conversations, or locating the origin of sounds. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating under the rating schedule for hearing loss, as such an opinion requires specialized medical expertise and testing which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to a disability rating in excess of 30 percent for bilateral hearing loss is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating than those found above. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. VanValkenburg, 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.