Citation Nr: 22014502 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-42 433 DATE: March 14, 2022 ORDER Entitlement to a compensable rating for bilateral hearing loss prior to November 21, 2019, and in excess of 40 percent thereafter is denied. FINDINGS OF FACT 1. Prior to November 21, 2019, the Veteran's bilateral hearing loss was manifested by hearing acuity of no worse than Level I in the right ear and Level I in the left ear, which corresponds to a noncompensable rating. 2. From November 21, 2019, the Veteran's bilateral hearing loss was manifested by hearing acuity of no worse than Level VI in the right ear and Level IX in the left ear, which corresponds to a 40 percent rating. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for bilateral hearing loss prior to November 21, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100. 2. The criteria for entitlement to a rating in excess of 40 percent from November 21, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1983 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board remanded this matter in May 2019, and most recently in September 2021, for additional development. As the actions specified in the most recent remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Ratings Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 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. The Veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which the veteran exhibits symptoms of the disability at issue, and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating hearing loss, disability ratings are derived by a mechanical application of the ratings schedule to the numeric designations assigned after audiometric evaluations are rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable (0 percent) to 100 percent based on organic impairment of hearing acuity. Audiological examinations used to measure impairment must be conducted by a state-licensed audiologist and must include both a controlled speech discrimination test (Maryland CNC) and a puretone audiometric test. 38 C.F.R. § 4.85(a). The ratings schedule provides a table for ratings purposes (Table VI) to determine a Roman numeral designation (I for essentially normal acuity through XI for profound deafness) for hearing impairment, based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. See 38 C.F.R. § 4.85, Diagnostic Code 6100. Table VII is then used to determine the percentage evaluation by intersecting the Roman numeral designations (from Table VI) for hearing impairment of each ear. The horizontal row represents the ear having the poorer hearing and the vertical column represents the ear having the better hearing. Id. Exceptional patterns of hearing impairment are evaluated under the provisions of 38 C.F.R. § 4.86. 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 VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone 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(b). When all the evidence is assembled, VA is responsible for determining whether the weight of the evidence is in approximate balance. If the positive and negative evidence is evenly or approximately balanced, the claimant receives the benefit of the doubt. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Entitlement to a compensable rating for bilateral hearing loss prior to November 21, 2019, and in excess of 40 percent thereafter The Veteran's service-connected bilateral hearing loss is rated noncompensable prior to November 21, 2019, and 40 percent disabling thereafter, pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. The Veteran generally contends that his hearing is worse than currently contemplated by his assigned disability ratings. In August 2011, the Veteran's private provider conducted audiological testing of the Veteran's right and left ears. In November 2021, a VA examiner interpreted these test results in puretone decibels, as indicated below. The Veteran underwent a VA audiology examination in September 2011. The audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 30 60 65 45 LEFT 25 50 70 70 53.75 Speech discrimination scores on the Maryland CNC word list were 90 percent in the right ear and 92 in the left ear. The average puretone threshold was 45 decibels in the right ear and 53.75 decibels in the left ear. The September 2011 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral I in the right ear on the basis of a 45 decibel puretone threshold average and 90 percent speech discrimination, and a numeric designation of Roman numeral I in the left ear on the basis of a 53.75 decibel puretone threshold average, and 92 percent speech discrimination. The numeric designation for the right ear, I, along with the numeric designation for the left ear, I, entered into Table VII, corresponds to a noncompensable (0 percent) rating for hearing impairment. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present. In April 2012, the Veteran's private provider conducted audiological testing of the Veteran's right and left ears. Pursuant to the Board's September 2021 remand, a VA examiner was asked to interpret these test results in puretone decibels, as indicated below. The Veteran underwent another VA audiology examination in November 2019. The audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 35 65 65 75 60 LEFT 50 70 75 70 66.25 Speech discrimination scores on the Maryland CNC word list were 60 percent in the right ear and 36 in the left ear. The average puretone threshold was 60 decibels in the right ear and 66.25 decibels in the left ear. The November 2019 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral VI in the right ear on the basis of a 60 decibel puretone threshold average and 60 percent speech discrimination, and a numeric designation of Roman numeral IX in the left ear on the basis of a 66.25 decibel puretone threshold average, and 36 percent speech discrimination. The numeric designation for the right ear, VI, along with the numeric designation for the left ear, IX, entered into Table VII, corresponds to a 40 percent rating for hearing impairment. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present. The examiner also noted that the Veteran's hearing loss impacted his ordinary conditions of daily life. As described by the Veteran, he cannot understand when people are talking to him unless they speak loudly and he is looking right at them. Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). In a November 2021 opinion, a VA audiologist interpreted the August 2011 private audiological testing as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 65 60 65 75 66.25 LEFT 60 75 80 85 75 The VA examiner noted that the August 2011 private audio exam notation shows a speech recognition score of 84 percent in the right ear and 88 percent in the left ear. However, there is no notation as to which word list was used or whether testing was completed via live voice or recorded words. The VA examiner noted that since there is no standardized audiological testing method for speech recognition and audiologists are at liberty to choose whatever test materials and levels, they feel are best for the purposes of that particular evaluation, there is no way to verify or assume what words were used or whether they were presented in a recorded or live manner. Most audiologists who utilize the Maryland CNC recorded words do so because they know that the VA uses that test for C&P exams, and they normally would document the use of that test for that reason. Since the Maryland CNC recorded words are used exclusively by the VA for C&P exams but not normally the first choice for audiologists in private practice as their normal day to day test protocol, it must be assumed that the test used to arrive at the speech recognition scores that day was not equivalent to the Maryland CNC word test protocol. The November 2021 VA examiner also conducted audiometric testing of the Veteran. The audiological evaluation recorded puretone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 50 45 70 65 57.5 LEFT 40 70 75 70 63.75 Speech discrimination scores on the Maryland CNC word list were 74 percent in the right ear and 78 in the left ear. The average puretone threshold was 57.5 decibels in the right ear and 63.75 decibels in the left ear. The November 2021 audiology examination findings, applied to Table VI, yield a numeric designation of Roman numeral V in the right ear on the basis of a 57.5 decibel puretone threshold average and 74 percent speech discrimination, and a numeric designation of Roman numeral IV in the left ear on the basis of a 63.75 decibel puretone threshold average, and 78 percent speech discrimination. The numeric designation for the right ear, V, along with the numeric designation for the left ear, IV, entered into Table VII, corresponds to a 10 percent rating for hearing impairment. Exceptional patterns of hearing impairment under 38 C.F.R. § 4.86 are not present. In a December 2021 opinion, the November 2021 VA examiner interpreted the April 2012 private audiological testing as follows: HERTZ 1000 2000 3000 4000 Average RIGHT 25 40 65 65 48.75 LEFT 35 55 70 65 56.25 While speech discrimination testing was performed, the provider indicated that it is less likely than not that the April 2012 speech recognition testing was equivalent to the Maryland CNC word test protocol. The examiner noted that the April 2012 exam does not document which word lists were used or if the testing was completed live voice or using recorded words. Since there is no standardized audiological testing method for speech recognition and audiologists are at liberty to choose whatever test materials and levels, they feel are best for the purposes of that particular evaluation, there is no way to verify or assume what words were used or whether they were presented in a recorded or live manner. The examiner explained that since the Maryland CNC recorded words are used exclusively by the VA for C&P exams but not normally the first choice for audiologists in private practice as their normal day to day test protocol, it must be assumed that the test used to arrive at the speech recognition scores that day was not equivalent to the Maryland CNC word test protocol. As such, the Board cannot consider the Veteran's April 2012 private audiological test results. See 38 C.F.R. § 4.85(a). The Board further notes that the Veteran's reported functional limitations are manifestations of decreased hearing acuity, which is already contemplated by the schedular rating criteria for hearing loss. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing people or the television or telephone. The Board notes that this conclusion is consistent with the United States Court of Appeals for Veterans Claims' holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[W]hen 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."). The Board further finds that other than difficulty hearing or understanding speech, the record contains no evidence of other symptoms attributable to the service-connected hearing loss. Finally, the Board acknowledges the Veteran's sincere belief that his bilateral hearing loss is worse than reflected by his currently-assigned ratings. The Veteran is competent to report symptoms of disability, such as difficulty hearing speech. 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 testing and expertise 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). In conclusion, the evidence persuasively weighs against finding in favor of the Veteran's claim for a compensable evaluation for bilateral hearing loss prior to November 21, 2019, and in excess of 40 percent thereafter. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.