Citation Nr: 18142413 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-52 627 DATE: October 15, 2018 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. FINDING OF FACT For the entire period on appeal, the weight of the probative evidence shows that the Veteran’s bilateral hearing loss is manifested by no worse than Level VI hearing acuity in the left ear and Level I hearing acuity in the right ear. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to June 1968. He is the recipient of the Bronze Star and the Purple Heart. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision. The Veteran was granted service connection for bilateral hearing loss and assigned a noncompensable rating as of April 2016 under the provisions of DC 6100 of the Schedule for Rating Disabilities. 38 C.F.R. § 4.85. The assignment of a disability rating for service-connected 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 severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85. Under these criteria, evaluations of bilateral hearing loss 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 puretone audiometry tests in the frequencies of 1000, 2000, 3000 and 4000 Hertz. For VA rating purposes, an examination for hearing impairment must meet the four requirements of 38 C.F.R. § 4.85(a). It must be conducted by a state-licensed audiologist, the examination must include a controlled speech discrimination test (Maryland CNC), the examination must include a pure tone audiometry test, and the examination must be conducted without the use of hearing aids. To evaluate the degree of disability from defective hearing, the rating schedule establishes eleven auditory acuity levels from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85. To evaluate an individual’s level of disability, Table VI is used to assign a Roman numeral designation for hearing impairment based on a combination of the percent of speech discrimination and the pure tone threshold average. 38 C.F.R. § 4.85(b). Table VII is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment for each ear. 38 C.F.R. § 4.85(e). Under 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 Level designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). As an initial matter, the Board finds that an exceptional pattern of hearing under 38 C.F.R. § 4.86 in the context of the Veteran’s hearing examinations was not shown except for his June 2018 examination, thus this regulation will be applied to that examination only. In April 2016, a VA medical center (VAMC) record indicated the Veteran complained of difficulty in hearing conversational speech, especially with his left ear. He reported more noise exposure to his left ear. In his right ear, he was found to have mild sensorineural hearing loss at 250-500 Hz and normal hearing at 1000-2000 Hz and a mild sloping to a moderately severe sensorineural hearing loss at 3000-8000 Hz. In his left ear, he had moderately-severe sensorineural hearing loss at 250-8000 Hz with asymmetry noted from 1500-4000 Hz. In May 2016, the Veteran underwent a VA audiological examination by a state licensed audiologist. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 30 45 LEFT 35 30 60 70 65 Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 76 percent in the left ear. The findings on the Veteran’s hearing in this study correlate to a designation of level I hearing in the right ear and level IV hearing in the left ear, using Table VI. Per Table VII of § 4.85, a non-compensable evaluation under DC 6100 is assigned when those levels of hearing are demonstrated. In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Regarding his hearing loss, the Veteran stated that he had to say “huh” a lot and try to turn himself towards the person talking in order to properly hear them. He stated that he just hears noise and sound and does not make sentences on his left side. In June 2018, the Veteran underwent a VA audiological examination by a state licensed audiologist. On the authorized audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 40 40 50 65 LEFT 50 55 75 85 80 Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 88 percent in the left ear. The findings on the Veteran’s hearing in this study correlate to a designation of level I hearing in the right ear and level VI hearing in the left ear, using Table VIa. Per Table VII of § 4.85, a non-compensable evaluation under DC 6100 is assigned when those levels of hearing are demonstrated. The Board has taken into consideration the provisions of § 4.86(a) in regard to this test and applied the evaluation most favorable to the Veteran pursuant to Table VIa to the Veteran’s left ear hearing loss. Thus, based on the foregoing audiological test results, the Board finds that the Veteran’s bilateral hearing loss does not warrant a compensable rating at any time during the period on appeal. The Board appreciates the difficulties which the Veteran says he experiences because of his hearing loss. However, according to the audiological test results during the pendency of the appeal, compared to the rating criteria, a compensable rating is not warranted. See Lendenmann, supra. In sum, the Board finds that for these reasons and bases, the preponderance of the evidence is against a compensable rating for bilateral hearing loss at any time during the period on appeal. The Board notes that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report. See Martinak v. Nicholson, 21 Vet. App. 447 (2007). In this case, the VA examiners noted that the Veteran reported hearing difficulty which affected his daily and occupational activities. The Board finds any functional impairment, in addition to the Veteran’s other reports, has been appropriately considered and is contemplated in the ratings and, additionally, fails to support an assignment of a compensable rating. The Board finds that the rating criteria contemplate the Veteran’s bilateral hearing loss disability. The Veteran’s hearing loss is manifested by decreased hearing acuity. 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 and understanding speech. The Board notes that this conclusion is consistent with the Court’s 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 on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss. The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-70. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel