Citation Nr: 22018238 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-38 342 DATE: March 28, 2022 ORDER Entitlement to a compensable initial rating for a bilateral hearing loss disability is denied. FINDING OF FACT The Veteran's bilateral hearing loss disability has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level I in the left ear. CONCLUSION OF LAW The criteria for a compensable rating for a bilateral hearing loss disability 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 (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Navy from June 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) from an April 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge in February 2021. A transcript of the hearing has been associated with the electronic claims file. The Board remanded the above issue in February 2021. The matter again is before the Board. Entitlement to a compensable initial rating for a bilateral hearing loss disability The Veteran contends that he is entitled to a higher rating because the current severity of his disability is not reflected in the current rating. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 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, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). In September 2012, the Veteran was noted to not use hearing aids, but that he was hard of hearing. A March 2013 VA examination report reveals that the Veteran reported difficulty hearing in all listening situations (one-on-one, in background noise, television, and on the phone). The Veteran had turned up the volume on his phone to maximum to help with hearing acuity. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: March 2013 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 25 35 60 70 47.5 96% LEFT 25 30 45 60 40 96% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In support of his claim, the Veteran submitted a December 2014 private audiogram. The Veteran's pure tone thresholds, in decibels, were as follows: December 2014 HERTZ 1000 2000 3000 4000 Avg RIGHT 25 40 70 75 52.5 LEFT 25 35 40 55 38.75 Private audiology reports may be used as evidence if all the required information is present. The specific speech recognition test utilized by the private provider was not noted, but the word recognition was noted to be 100 percent in each ear. If the speech recognition scores are not Maryland CNC, then the audiometric evaluation is not adequate for rating purposes under § 4.85(a). Even assuming the use of the Maryland CNC word list, applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. During his February 2021 Board hearing, the Veteran indicated that his wife was tired of repeating herself, even when the Veteran was sitting right next to her. The Veteran had particular difficulty understanding in circumstances where there was significant background noise. He also testified that he had difficulty hearing sirens when driving. The Veteran believed that his hearing acuity had worsened since the last VA examination. A September 2021 VA examination report reveals that the Veteran reported difficulty hearing in noisy environments, group situations, and from a distance. The Veteran stated that when watching television he had to ask his wife to repeat what was said or to turn up the volume on the television. Things sounded like gibberish and if 2 or 3 people were speaking at once he could not separate what was being said. The Veteran had turned up his phone in order to understand what was being said. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: September 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 50 75 80 60 86% LEFT 30 40 50 55 44 94% Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. In a March 2022 statement, the Veteran's representative argued that the Veteran's hearing loss was worse than currently rated. "He believes his hearing loss has prevented optimal performance especially in the presence of background noise resulting in total communication failure or problems. He presents significant deficits with activities of daily living." Based on the evidence above, a compensable rating for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the assertion that in the presence of background noise he has significant or total inability to communicate. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to a compensable rating for hearing loss. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). The issue of consideration of an extraschedular rating was raised by the March 2022 statement from the Veteran's representative. 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 his difficulty or inability to communicate in circumstances involving background noise. The threshold issue under Thun is thus is not met, and further consideration of an extraschedular rating is not warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.