Citation Nr: 23017751 Decision Date: 03/21/23 Archive Date: 03/21/23 DOCKET NO. 18-34 198A DATE: March 21, 2023 ORDER A compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entire appeal period, the Veteran's bilateral hearing loss is manifested by no worse than Level III hearing in the right and left ears. CONCLUSION OF LAW 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, 4.2, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1973 to August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. In October 2019, the Board remanded the case for additional development and, upon its return, the Veteran, through his representative, requested a hearing before a Veterans Law Judge. However, he, through his representative, withdrew such request in February 2023. 38 C.F.R. § 20.704(e). The Board observes that, subsequent to the issuance of the most recent supplemental statement of the case in November 2020, additional evidence, to include updated VA treatment records and an October 2022 VA audiological examination, was associated with the record. However, in February 2023, the Veteran, through his representative, waived Agency of Original Jurisdiction (AOJ) consideration of such newly received evidence. 38 C.F.R. § 20.1305(c). Entitlement to a compensable rating for bilateral hearing loss. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on March 9, 2018, the date VA received the Veteran's increased rating claims, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, his bilateral hearing loss has been rated as noncompensably disabling pursuant to Diagnostic Code 6100. 38 C.F.R. § 4.85. In this regard, ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI. In order to establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for 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). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86(a). In the latter case, 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 Roman numeral. 38 C.F.R. § 4.86(b). VA treatment records dated throughout the appeal period reflect a diagnosis of sensorineural hearing loss and a prescription for hearing aids; however, such do not include audiometric testing results for rating purposes. Private treatment records dated in December 2017 reflect a diagnosis of normal hearing sensitivity sloping to a mild sensorineural hearing loss bilaterally. Pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000 and 4000 Hertz were 20, 30, 30, and 20 in the right ear and 20, 25, 30, and 40 in the left ear, respectively. The pure tone threshold average was 25 decibels in the right ear and 28.75 decibels in the left ear. No exceptional pattern of hearing loss was shown. Word recognition testing list revealed speech recognition ability of 96 percent in the right and left ears; however, it is unclear whether such was conducted utilizing the Maryland CNC word list. Nevertheless, even assuming such was indeed utilized, these audiometric test results equate to Level I hearing in the right ear and Level I hearing in the left ear utilizing Table VI, which equates to a noncompensable rating for bilateral hearing loss pursuant to Table VII. At an April 2018 VA examination, the Veteran reported that his bilateral hearing loss made it hard to hear. Pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000 and 4000 Hertz were 30, 40, 45, and 60 in the right ear and 35, 45, 45, and 55 in the left ear, respectively. The pure tone threshold average was 44 decibels in the right ear and 45 decibels in the left ear. No exceptional pattern of hearing loss was shown. Word recognition testing utilizing the Maryland CNC word list revealed speech recognition ability of 76 percent in the right ear and 80 percent in the left ear. These audiometric test results equate to Level III hearing in the right ear and Level III hearing in the left ear utilizing Table VI, which equates to a noncompensable rating for bilateral hearing loss pursuant to Table VII. Private treatment records dated in January 2019 reflect a diagnosis of normal hearing sensitivity sloping to a slight sensorineural hearing loss in the left ear and a mild hearing loss rising to normal hearing sensitivity sloping to a mild sensorineural hearing loss in the right ear. While such examiner performed audiometric testing at 1000, 2000, and 4000 Hertz, such was not performed at 3000 Hertz. Additionally, while word recognition testing revealed speech recognition ability of 92 percent in the right ear and 84 percent in the left ear, there is no indication as to whether the Maryland CNC word list was used. However, even assuming such was indeed utilized, the lack of audiometric testing at 3000 Hertz renders such evaluation inadequate for rating purposes. 38 C.F.R. § 4.85(a), (d) (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 with a pure tone threshold average resulting from the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz). At a January 2020 VA examination, the Veteran reported that his bilateral hearing loss resulted in the need to ask people to repeat themselves sometimes and difficulty when conversing with background noise. Pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000 and 4000 Hertz were 15, 15, 15, and 15 in the right ear and 5, 10, 5, and 20 in the left ear, respectively. The pure tone threshold average was 15 decibels in the right ear and 10 decibels in the left ear. No exceptional pattern of hearing loss was shown. Word recognition testing utilizing the Maryland CNC word list revealed speech recognition ability of 100 percent in the right and left ears. These audiometric test results equate to Level I hearing in the right ear and Level I hearing in the left ear utilizing Table VI, which equates to a noncompensable rating for bilateral hearing loss pursuant to Table VII. At a November 2020 VA examination, the Veteran reported that his bilateral hearing loss results in the need to turn up the volume on the TV and difficulty socializing in groups of people. Pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000 and 4000 Hertz were 15, 20, 15, and 15 in the right ear and 15, 15, 10, and 25 in the left ear, respectively. The pure tone threshold average was 16.25 decibels in the right ear and 16.25 decibels in the left ear. No exceptional pattern of hearing loss was shown. Word recognition testing utilizing the Maryland CNC word list revealed speech recognition ability of 82 percent in the right ear and 90 percent in the left ear. These audiometric test results equate to Level III hearing in the right ear and Level II hearing in the left ear utilizing Table VI, which equates to a noncompensable rating for bilateral hearing loss pursuant to Table VII. At a December 2022 VA examination, pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000 and 4000 Hertz were 15, 15, 15, and 20 in the right ear and 10, 15, 15, and 15 in the left ear, respectively. The pure tone threshold average was 16.25 decibels in the right ear and 13.75 decibels in the left ear. No exceptional pattern of hearing loss was shown. Word recognition testing utilizing the Maryland CNC word list revealed speech recognition ability of 96 percent in the right and left ears. These audiometric test results equate to Level I hearing in the right ear and Level I hearing in the left ear utilizing Table VI, which equates to a noncompensable rating for bilateral hearing loss pursuant to Table VII. At a February 2023 VA examination, the Veteran reported that his bilateral hearing loss results in the need to turn up the volume on the TV and a dislike of loud noise. Pure tone thresholds in decibels at the tested frequencies of 1000, 2000, 3000 and 4000 Hertz were 20, 15, 15, and 20 in the right ear and 10, 10, 5, and 20 in the left ear, respectively. The pure tone threshold average was 17.5 decibels in the right ear and 11.25 decibels in the left ear. No exceptional pattern of hearing loss was shown. Word recognition testing utilizing the Maryland CNC word list revealed speech recognition ability of 76 percent in the right ear and 84 percent in the left ear. These audiometric test results equate to Level III hearing in the right ear and Level II hearing in the left ear utilizing Table VI, which equates to a noncompensable rating for bilateral hearing loss pursuant to Table VII. Based on the foregoing, the Board finds that a compensable rating for bilateral hearing loss is not warranted. To the extent that the Veteran contends that his bilateral hearing loss is more severe than the currently assigned rating, the Board observes that he, while competent to report symptoms capable of lay observation, to include difficulty hearing, requesting people repeat themselves, turning the TV up, difficulty when conversing with background noise and while socializing, and a dislike of loud noises, is not competent to report that his hearing acuity is of sufficient severity to warrant a higher rating under VA's tables for rating hearing loss disabilities because such an opinion requires medical expertise (training in evaluating hearing impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Despite the foregoing, the Board acknowledges the Veteran's aforementioned reports of the difficulties associated with his bilateral hearing loss. However, even after considering such contentions as to the effects of the disability on his daily life, the Board finds that the criteria for higher evaluations are not met. See Lendenmann, supra. In this regard, in Doucette v. Shulkin, 28 Vet. App. 366 (2017), the United States Court of Appeals for Veterans Claims held that the rating criteria for hearing loss 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. The Veteran has not otherwise described functional effects that are considered exceptional, or that are not otherwise contemplated by the assigned evaluation. Id. Thus, his complete disability picture is compensated under the rating schedule. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected bilateral hearing loss; however, the Board finds that such symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in connection with the increased rating claim adjudicated herein. Doucette, supra. Therefore, based on the foregoing, the Board finds that a compensable rating for bilateral hearing loss is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the weight of the probative evidence is against the Veteran's claim, the positive and negative evidence is not in approximate balance. Consequently, the benefit of the doubt doctrine is inapplicable in the instant appeal and the Veteran's increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.